By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

Wiley@FELTG.com

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