Some Things Should Be Kept From the Boss

The appeals court has thrown out an arbitration decision upholding removal of a Department of Defense teacher, finding her due process was violated when the chain of command discussed her case.

A recent case illustrates the pitfalls of open communications in the chain of command when taking disciplinary action against a federal employee. (Federal Education Association v. Department of Defense (CAFC No. 2015-3173, 11/18/16))

According to the court’s opinion, the employee subjected to removal had been a teacher more than thirty years. Most of her career involved working with young kids with special needs. At the time of her removal, she was a pre-school teacher for a DoD Domestic Dependents Elementary and Secondary School, working with special needs 3 to 4 year old children.

As the court stressed in its opinion, “Special education teachers must make difficult judgment calls in determining how to handle the behavior of their …students. This case has its genesis in divergent approaches to that problem.” (Opinion p. 3)

Following a reprimand for her physical handling of a misbehaving child, another incident occurred that led to her removal. Briefly summarizing, the teacher used two restraints on a child who was repeatedly kicking and screaming that classroom aides reported to the school management. (For more specific details see page 3 of the court’s opinion. The facts are not really at issue since the teacher did not deny her handling of the situation.)

What is at issue is the communication up and down the management chain after the incident.

The incident report went from the aides to the school’s principal (“Principal”). She investigated and drew up a “Serious Incident Report and Alleged Child Abuse Report” that she send to the military equivalent of child protective services. But she did not stop there. She also sent a copy of the report to her two supervisors, the Community Superintendent (“Superintendent”) who later ended up being the deciding official in the teacher’s removal, as well as to the District Superintendent (“District”). District replied to both Principal and Superintendent that “we need to try and terminate her for repeated use of corporeal [sic] punishment and for insubordination.” (p. 4) Principal was eager to jump on board, writing back to both District and Superintendent that she “strongly support[s] termination,” and that “luckily we have the two witnesses.” (p. 4)

It is the back and forth communication in the management chain that tripped up the agency’s case with the appeals court. After all, one of the officials (the Superintendent) would eventually be the deciding official; however his boss (District) had weighed in early that he wanted the teacher fired and even spelled out what the charges should be.

An arbitrator upheld the removal.

The issue before the court turned on whether the teacher’s due process rights had been violated by the ex parte communication described above. The court has ruled (that is, a 2-1 majority; there was a dissent) that this did violate due process. As it explains “…the email was certainly the ‘type’ of communication ‘likely to result in undue pressure on the deciding official to rule in a particular manner…A supervisor issued what can only most generously be deemed a ‘suggestion’ to a subordinate decision-maker…. [This] creates a high risk that a subordinate decision-maker would have been unduly pressured to terminate the employee.” (p. 15)

There is a lesson and a warning flag in this decision. Agencies must be careful if there is evidence of higher echelons pre-judging a disciplinary situation. Admittedly the agency was able to convince one member of this three-judge panel that this communication was nothing more than an expression of general knowledge of performance issues on the part of upper management levels. However the majority decision frowns upon these facts and holds that they add up to a due process violation. Confronted with this situation the agency must disclose the evidence of the communication. If the evidence threatens to weaken or undermine its case the agency should also consider finding someone above the upper manager (above the District in this case) to make the final agency decision on the discipline.

FEA v DOD No. 2015-3173

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.