By Deborah J. Hopkins, February 20, 2024

As I make my way through dozens of new nonprecedential (NP) MSPB cases, some grab more of my attention than others. And while NP cases don’t really tell us anything new about the law (See 5 C.F.R. § 1201.117(c)), sometimes they’re still worth discussing because of the case facts.

Along those lines, the MSPB upheld a recent National Park Service removal, in large part because of the appellant’s track record of receiving previous discipline: Stancil v. DOI, DC-0752-17-0153-I-1 (Jan. 30, 2024) (NP). On Nov. 21, 2016, the agency removed the appellant for failure to follow her supervisor’s instructions, citing three specifications:

  • The appellant failed to attend a meeting scheduled for her return from a 14-day suspension on June 20, 2016.
  • The appellant failed to attend a standing biweekly update meeting on June 21, 2016.
  • The appellant failed to attend a webinar meeting on June 30, 2016, as ordered by her supervisor.

In justifying the removal, the agency relied on the fact that, among other factors, it had disciplined the appellant twice previously for the same type of misconduct:

  1. On Nov. 20, 2015, the appellant received a letter of reprimand for four instances of failing to follow her supervisor’s directions to attend meetings; and
  2. On June 5-18, 2016, the appellant served a 14-day suspension for five instances of failing to follow her supervisor’s instructions to attend meetings.

The appellant raised multiple affirmative defenses including whistleblower reprisal, however, the Board held the agency supplied clear and convincing evidence it would have removed the appellant even absent her protected activity. According to the Board:

We find that the deciding official’s principal motivation for removing the appellant was her unwillingness to change her behavior despite receiving progressive discipline. In particular, the deciding official testified that he had hoped the use of progressive discipline would change the appellant’s behavior and cause her to recognize that she needed to follow her supervisor’s directions to attend meetings. HT at 96 (testimony of the deciding official). He further testified that he thought that the appellant’s continued failure to follow her supervisor’s instructions was flagrant and that he felt there was no other choice but to remove her.

Id. at 16.

Progressive discipline is something we teach during MSPB Law Week (next held April 15-19) as a tool to (hopefully) correct an employee’s misconduct. If it doesn’t have its intended effect, it provides the agency with a solid basis to support a removal action.

Take a bow, NPS, for showing the FELTG world a textbook use of progressive discipline. [email protected]

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