Making a Defensible Discipline Decision – What Every Federal Manager Absolutely Needs to Know

So you’re considering taking or proposing a disciplinary action against a federal employee?

It’s very important that you be able to recognize the principles that must be observed and thought processes you have to follow. Why? You’re the one who may have to testify in the Agency’s behalf not the attorney or employee relations specialist who advises you. There may be at least four different judges that look at your decision. Among them are an administrative judge from the Equal Employment Opportunity Commission (EEOC) if the employee goes the EEO route; an administrative judge from the Merit Systems Protection Board (MSPB) if it has jurisdiction; an arbitrator, if the employee is represented by the union; or a Federal District or Circuit Court of Appeals Judge on appeal after EEOC or MSPB have ruled.

I don’t say this to dissuade you from taking the action–only to let you know that there is a widely agreed “cookbook” that has to be followed if you want to make it difficult for a judge to reverse your decision. There is nothing you can do that will prevent an employee from appealing a discipline decision, so get it right and the judge will uphold the action.

There are essentially two people you will be addressing in a discipline action.

The first is the employee. You want the person to know what they did wrong and in most cases to refrain from doing it again. (If it is a very serious first offense, you may only want them gone.)

The second person is the judge who will review your decision. Make no mistake, it is your decision. I recently had a comment to an article from an “employee relations specialist” who claimed to have taken “hundreds of actions”. Nonsense. The person may have drafted the paper but a manager signed and took responsibility for it. Keep this in mind as we go along.

So where do youstart?

1. What specific rule do you think was broken? Is there evidence that proves the employee knew the rule?

Most discipline in the Federal service arises from an infraction of leave or leave requesting policies so let’s start with this. Documentation and notice to the employee are important components of a defensible action. If there’s a piece of paper that was given to the employee that spelled out leave requirements, you’re on the right track. If the employee got a leave restriction letter and its time limits are still in effect, even better. Keep in mind that so far, all you’ve got is that a rule existed and the employee knew about it.

2. What did the employee do that broke the rule? What proof exists?

Keeping leave cases in mind, let’s assume the employee was on a leave restriction and didn’t call in at the time required or at all. You know he broke the rule, so how do you prove it? It’s pretty simple. The person’s supervisor who signed the restriction letter can attest that it was the supervisor who was supposed to be called and wasn’t. In addition, the supervisor may be able to say that when the employee returned to work, no reason or an unacceptable (per the restriction letter) reason was given.

3. Has the rule been followed in situations comparable to this one?

The rule here is equity, not equality. If the facts and the employee’s situation are exactly the same (a rare event) then they must be treated relatively equally. Your reasonable judgment usually must apply because the facts or the employee’s situation (history of problems, length of service, etc.) will most likely differ from others.

A lot is said about the need for consistency. I tend to side with Ralph Waldo Emerson (1803–1882) who said: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” (And some agency risk-averse counsel.) MSPB has generally found that consistency is only necessary within the scope of a decision maker’s authority provided that Agency policies are followed and the difference between the decisions is not extreme. (My words not theirs).

4. Are you taking action in a timely manner?

The leave case discussed above will likely be lost if the behavior occurs in January and you get around to a decision in December. If there’s a good reason for the delay, you may still be upheld but the cause of the delay has to more than pass the laugh test, be reasonable under the circumstances, etc.

5. Was the employee’s story heard before the disciplinary letter or proposal was drafted?

Listen to what the employee has to say and, generally, get it in writing, sign it and date it. Hearing the employee’s side is a critical component. So what if the employee is uncooperative? Employees in Federal service may be directed to answer certain questions. Among them are: “Did you do whatever it was?” “Why did you do it?” “Please explain how this happened etc.?”

The U.S. Supreme court is not only in your court but on your side in this. Employees must truthfully answer questions in an official inquiry about misconduct. What happens if they don’t? They can be charged with a separate offense such as “failure to cooperate with an official investigation”. Keep in mind that you’re an official and conducting an inquiry when you ask such questions. A side note is that a bargaining unit employee can request a union representative at such a meeting. Other employees have no representational rights unless criminal conduct is involved. But don’t sweat that. If a crime is involved, the lawyers, IGs and others will carry the ball. But you may still have to write the letter.

Do all of the above and your mind will likely be made up one way or the other. In Part 2 we’ll deal with how you structure the above and get it down on paper. Another note, I’m not a lawyer so I’m not supposed to use terms like due process but that’s what we’ve been talking about so far.

As always, the views expressed are mine and mine alone.