By Deborah Hopkins, August 6, 2019

Here’s a scenario that came across the FELTG desk a few days ago:


Let’s say, hypothetically, an agency has an employee who failed a PIP/demonstration period last week, and the agency is finishing up drafting his proposed removal.

Meanwhile, let’s say the supervisor sent an email to the employee pointing out his failure to submit leave requests as previously instructed and asking him to send them immediately. Instead of sending them, he calls the supervisor and unleashes a tirade – lots of “G-d damn,” “f*!king,” “sh!t,” screaming at the top of his lungs and calling the supervisor names. The supervisor’s door is closed, but the employee is on speakerphone, and people across the hall – also with their office doors closed – hear the tirade and are almost as upset and shocked as the supervisor.

The supervisor wants to do a misconduct removal, and considering the fact that the employee was just suspended for five days for similar inappropriate conduct towards a coworker, that’s probably not unreasonable. Also, the employee still hasn’t submitted those leave requests as instructed. In any event, some kind of discipline is warranted.

What should the agency do with the disciplinary proposal since a performance removal is imminent? Hold one in abeyance while the other is processed? Propose them both at the same time? It might be tempting to just forget about the discipline (since they’re removing the employee anyway), but what if the agency didn’t want to do that?




And here are FELTG’s thoughts on the scenario:

Good to hear from you, Anonymous, and thanks for the hypothetical. This imaginary person has just made your case for removal even stronger.

The agency can issue one proposed removal letter with two sections: one for conduct and one for performance. I would start off with a subject line of Proposed Removal for Misconduct and Unacceptable Performance, and start the letter something like this:

By this letter I am proposing your removal for Conduct Unbecoming [or whatever you call that profanity-laced tirade], AWOL [for the amount of time not covered by a proper leave request], and for unacceptable performance, based on the below:

Then I’d make very clear in the letter where the conduct section starts and ends, and where section for the performance removal starts and ends. In the attachments of materials relied upon, be clear what materials relate to the conduct removal (such as Douglas analysis, any evidence, affidavits, etc.) and which relate to the performance removal (such as failed PIP assignments).

You don’t want to confuse the processes for yourself, or the employee, so you’ll need to be organized in the letter.

Also, if the Deciding Official concurs with removal, you’ll want to split out the decision sections for conduct and performance clearly as well. It would also be wise to include in the decision letter something to the effect of, “Removal is an appropriate penalty for the conduct issue alone, and for the performance issue alone.” Only if it’s true, of course. That way even if for some reason you lost one, you would still have the other one.

As a quick point, in the FELTG world this employee would not have had the chance to be confronted about leave requests and subsequently act disrespectfully to the supervisor the week after he failed the demonstration period (DP). Why, you ask? In our classes, we teach that if it looks like the employee is not going to succeed during the DP, the supervisor can begin to draft the proposed removal letter during the DP, based on the incidents of poor performance, so that the letter can be issued the day after the end of the DP. Immediately after we give the employee the proposed removal, we put the employee out on Notice Leave so he’s no longer in the workplace. That’s the ideal situation, if you are aggressive in your approach. And we like aggressive.

Hope this hypothetical helps. Good luck! [email protected]

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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