No matter how much you dislike it, your role as a manager sometimes requires you to take disciplinary action against an employee. The alternative — allowing some employees to disregard the rules — eventually hurts the performance of the agency as a whole.
But when employees protest disciplinary actions taken against them — by appealing to the Merit Systems Protection Board or filing a union grievance — punishments are sometimes overturned because of managers’ errors during the disciplinary process.
One of the most common mistakes made by managers is failing to identify all the reasons for selecting a certain punishment. In a 2002 case against the Justice Department, MSPB would not uphold a disciplinary action because it raised charges that had not been raised in the initial proposal for discipline. In a 2007 case against the U.S. Postal Service, MSPB ruled that “the agency is required to prove the charge as it is set out in the notice of proposed removal.”
Managers also can get into trouble with wording. If an employee continues to consult with an outside contractor on an issue after his supervisor told him not to, the charge is better stated narrowly as “failing to follow supervisory instructions” than as “insubordination.” MSPB noted in the 2007 Postal Service case that proof of insubordination requires a much greater showing than proof of failure to follow supervisory instruction.
With these rulings in mind, it’s important to proceed carefully in disciplinary matters:
*First, gather evidence. Describe who, what, when, where and why. Get the perspectives of witnesses and others involved in the incident. Give the employee facing disciplinary action the opportunity to explain his version of what happened. Keep in mind that bargaining unit employees have the right to union representation during any discussion that could lead to discipline. And document all information discovered.
*After the facts of the situation are established, review how you have previously enforced the rules in question. When I’m defending an employee charged with a disciplinary removal or suspension, I look at whether the employee was aware of the rule he broke and if the rule is consistently enforced.
For example, if my client is disciplined for continual lateness, I look into the agency’s policy for reporting to work. Say the employee is supposed to report at 8 a.m., but doesn’t show up till 8:15 a.m. because of his daily trip to the cafeteria. He claims he was under the impression that reporting to work means being in the building, not at his desk. As his defense counsel, I look into whether all employees are held to the standard of reporting to their desks at 8 a.m. and whether all who failed are penalized. If you, as a manager, are inconsistent, it’s unlikely your disciplinary action will withstand an appeal.
*Give the employee facing disciplinary action a chance to reply to the charges following your investigation. The response can be written or verbal, and the employee can provide documentation or witness accounts to support his position. During this process, you should never give any indication that a decision is predetermined. And take a written record of this phase.
*Before issuing a final decision, consider the employee’s reply. Weigh any extenuating circumstances, such as provocation by a co-worker or personal or medical problems.
*If after this evaluation you determine that disciplinary action must be taken, the next step is to determine what action to take.
Certain factors, commonly referred to as the Douglas factors, should be considered to determine an appropriate penalty. The name stems from the 1981 case Douglas v. Veterans Administration, in which MSPB outlined the following factors managers should consider when determining penalties: nature and seriousness of the conduct; the employee’s job and responsibilities; past disciplinary record; ability to perform and the supervisor’s confidence in that ability; consistency with penalties for other employees; consistency with table of penalties; notoriety and impact on the agency’s reputation; clarity of notice of violations; potential for rehabilitation; mitigating circumstances; and availability of alternative sanctions.
Unfortunately, MSPB decision did not establish which factors managers should weigh more prominently. This is why consistency in your actions is important. Consistency will back up your decision-making process.
*Employees generally have only 30 days to appeal the imposed disciplinary action. Given that tight deadline, it’s professional courtesy to give an employee’s defense counsel an extension to respond to the action. Consult with your agency’s human resources and legal counsel at any step of the way.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.
