Deciding an Adverse Action: What the Manager Must Consider

In this final article in a three part series, the author explores the thought processes and considerations an Agency Deciding Official must use to render a decision and have it sustained on appeal. This framework is drawn from the law as evolved by the Merit Systems Protection Board since it came into existence in 1979.

This is the final article of a three part series for Deciding Officials. Part One focused on how the overall process worked and on reviewing a proposal. Part Two looked at handling a reply meeting with the employee involved

This article is about the thought processes and the conceptual framework involved in making these often difficult decisions that will substantially impact the individual, coworkers, and the organization.

This subject is complex and these articles focus on the basics. Managers should seek advice from experienced Agency employee relations staff and counsel, if available. The operant word is experienced. You’ll want to work with someone who has worked a case from beginning to end and who can perform the required research on prior Merit Systems Protection Board (the Board) and Federal Circuit Court of Appeals cases. Lets look at what the Deciding Official must consider.

First, Should You Be Deciding the Case?

Make sure the basic requirements are met:

There is no conflict or apparent conflict of interest for the specific manager to decide the case. In other words, no relationship or history that could be proven to taint an outcome either favorable or unfavorable to the employee. If this is a concern, you should step down (recuse yourself) and let another manager decide the case.

That all required procedures were followed up to and including the issuance of the proposed notice (proposal). If there are problems, send the proposal back to the Proposing Official for correction. Even if this keeps an employee around longer or on administrative leave longer, it’s still cheaper than risking a reversed decision for a “harmful error”.

That the employee’s reply, if oral, was heard; that a written reply was received and considered; and, that if the employee did not reply either orally or in writing, the notice period specified in the proposal has past before the decision process started.

Second, Are the Charges (Allegations, Reasons) Proven?

A Deciding Official must be convinced that the charges and specifications spelled out in the proposal are backed up by sufficient evidence to prove them. The so-called Standard of Proof is “a Preponderance of the Evidence”. There is no simple explanation for this judgment. My advice to decision makers has been that they should be convinced of the truth of the charges by the establishment of the facts in the specification. In other words, for example, credible people have sworn that they saw something relevant that proves a fact, documents exist that prove a fact, or the employee him/herself has admitted the truth of the specified facts. Second hand recitations of conversations by people not present, unsworn statements, substantial conflicts about observed facts by different people, statements by people with a bias, should raise the red flag on the proof of facts. The Board will hear and consider circumstantial or hearsay evidence and so should the Deciding Official but weigh as the Board does, the consistency of such evidence with other known or proven facts. Keep in your forebrain the notion that if someone has something to gain or lose by a statement (including the employee charged with the offense), that statement’s weight in the overall consideration may be lessened.

Third, What was the Substance of the Employee’s Reply?

You must consider the employee’s written and/or oral reply. If none is made, you’ll decide on the record but should take absolutely no inference from the lack of a reply. In reviewing a reply, you should carefully examine any additional evidence, including witnesses, documents or anything else put forward. You should consider any such information as an assertion unless it can be verified. But you should have the assertion checked out. If it’s a witness, get a statement, if a document, get a verifiable copy, etc. If you don’t determine its worth, you can be certain a Board judge or an arbitrator will. Do your homework or lose the case. You decide.

Fourth, What If Something Isn’t Proven?

It’s not uncommon for a Deciding Official to find an individual specification within a charge or one or more charges have not been adequately proven. It’s better that you address the matter in your decision. If there’s only one charge, failure to prove it would require setting aside the proposed action altogether. But, for example, let’s assume the charge is a third offense of Unauthorized Absence and that there are four specifications. The manager decides that two of the specifications cannot, for one reason or another, be proven. The decision to be made is whether the remaining specifications warrant the action proposed or a lesser action based on the total record at hand. The same is true when there are multiple charges and some of them cannot be sustained.

Fifth, Does the Action Proposed or an Alternative (lesser) Action provide “Such Cause as Promotes the Efficiency of the Service”

OK. You’re satisfied that the employee did all or at least enough of the matters charged to warrant an action to be taken. You must now link the behavior and “the efficiency of the service”. If the behavior is off-duty, the Board requires a direct link to on-the-job performance, continued trust in the individual, or other critical effect. On-duty misconduct is easier to link but the link must still be made. The Board has found that unauthorized absence in and of itself is so linked to job success that it needn’t be proven. Don’t risk it! Make the link.

I once represented an Agency in a case involving unauthorized possession of and removal of government property without permission. In preparing the deciding official, a military officer, she said that it was obvious that if someone took something there had to be a negative effect on efficiency. It took sitting her down and having her read several Board decisions before she understood that she must tell the judge exactly how the employee’s misconduct affected the mission adversely. It’s that or lose the case. You decide. It’s my belief that no one can explain better the impact of misconduct on the efficiency of the service than the manager who must schedule work, arrange for resources, work to improve employee morale or make the myriad of other decisions that drive getting the job done.

At this point it’s probably best we look at what exactly a deciding official decides. It is:

1. The proposed action is sustained. The employee either did not reply or failed to offer any valid/acceptable reasons for his/her actions and the record shows that the proposed action is warranted.

2. The penalty is reduced. The employee is guilty of the misconduct. However, there are relevant, extenuating circumstances which warrant a less severe penalty within the range provided by the applicable Table of Penalties.

3. The proposed action is cancelled. The employee’s reply clearly justifies his/her action and the penalty is unwarranted.

By the way, my sincere thanks to the U.S. Army and its Civilian Personnel On-Line for the above three bullets.

Sixth, What’s the Appropriate Penalty/Remedy, If the Charges are Proven and the Offense adversely Affects the Efficiency of the Service?

A number of factors affect the determination of a penalty, sometimes called a remedy. But First let’s get a serious problem out of the way. Get rid of the notion that the action is “punishment” for anything. We punish wayward children and criminals in the U.S.A. Disciplinary and adverse actions are corrective in nature. Forget that concept and the case may be lost. Any Deciding Official who testifies about how this employee needs to be punished will not only cause the case to fail but deserves to have it happen.

If you search FedSmith for “Douglas Factors”, you’ll get prior articles that cover them in detail but you must consider them and any other relevant factors that would support or lessen the penalty for the employee’s misconduct. Just so you’ll remember, here they are:

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

(3) The employee’s past disciplinary record;

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties;

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

(7) Consistency of the penalty with any applicable agency table of penalties;

(8) The notoriety of the offense or its impact upon the reputation of the agency;

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

(10) Potential for the employee’s rehabilitation;

(11) Mitigating circumstances surrounding the offense such as unusual job tension, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

OK. So what if it’s a first offense and there’s no prior discipline, no progressive discipline, no prior warnings or any other such consideration. Obviously an adverse action for a first offense is going to involve some very serious misconduct. Most Agencies would can an employee for criminal behavior on the first go around. Most would do it if there was a substantially high cost, wide notoriety that causes the Agency’s reputation to suffer or the misconduct took away the trust that must exist for many Federal jobs. If there are more good reasons for them to go than stay then the Agency will likely be sustained.

In any event, a Deciding Official should get Board and Court cases that address the exact issue or one very close to the one at hand and read them for guidance. This is true for all adverse actions not just first offenses. The reality is that the facts of any case will never be the same as the one in front of you. You must judge. You must also know that the Board and the law consider you a judge and that’s why an employee’s petition to the Board is called an Appeal. If you read the Board and the law, you’ll quickly realize that you are the Agency’s judge and that you will make the Agency’s final decision on the matter. It’s serious business and requires very serious attention.

Seventh, What About Claims of Discrimination?

A claim by the employee that the proposal results from discrimination is called an Affirmative Defense. Employees may claim discrimination based on any number of factors such as race, color, religion, national origin, age, gender, sexual preference, politics, disability, union activity, whistle blowing, or reprisal for having filed a prior claim, complaint, appeal, grievance or gripe. I’m sure I left something critical to someone out and will humbly accept comments correcting me.

So must you disprove the employee’s allegation before you decide the case? Not entirely. It’s your job to consider the allegations made and the facts and evidence put forward in their support. If it all appears to be allegations without much substance, move on. If there’s merit (proof) to the claim, stop and get the matter looked into. The more merit, the more consideration the claim is worth. You must be the judge but be careful of getting sidetracked. If the action is warranted on its own merits, the charges are proven, you’ve done a careful Douglas analysis (see above) and the claims bias appear self-serving, you’ve likely got all you’re going to have to make the decision. You decide.

Eighth, What About Settlement?

Settlement is always an option. If I were a Deciding Official, I’d find out who has experience settling cases, get them assigned to work on it and keep myself out of the process except to approve offered deals and sign off on the final deal. Vince Lombardi, the legendary Packers’ coach allegedly said “three things can happen if you throw the ball and two of them are bad”. If a case goes to hearing, lots of things can happen and only one of them is good. Agencies have very high win rates before the Board but if an acceptable settlement is possible, why expend the money, stress and risk if it can be made to go away. But that’s a topic for another series or two or three.

Ninth, Does the Decision Letter Reflect the Above and other Procedural Requirements?

Chances are your human resources folks will want to draft the decision letter after an extensive discussion with you. It’s generally their job to get all the details right such as effective dates, appeal rights and the like. They will also prepare an Standard Form-52 (Request for Personnel Action) for you to sign if you take some or all of the action proposed. No matter what the Staff does, you are responsible for the action, so read everything involved carefully and require an explanation of anything you’re not sure of. NEVER Sign a decision letter that isn’t entirely reflective of your thinking and reasoning involving the action. You must rely on staff for technical advice but be sure you are absolutely committed to anything you sign. It’s your responsibility by law.

Tenth, Living with Your Decision.

On the first day a person joins the Federal service or close to it, the new civil servant raises their right hand and takes the following oath under the provisions of Title 5 of the United States Code at Section 3331:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

It doesn’t say it anywhere in the law or in Board regulations or its decisions but most deciding officials I’ve known considered it their responsibility to determine, in essence, whether the person has well and faithfully discharged their duties as they swore to do or engaged in misconduct that violated the trust the oath implies.

If you’ve done your level best to be fair and impartial, to consider all of the evidence, to weigh the effect of the proven offence on the efficiency of the service, to consider the mitigating and aggravating factors present and to do the right thing, sleep well.

I alone am responsible for any opinion or mistake in the above.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.