By Deborah Hopkins, January 18, 2017
Within the first few minutes of our FELTG onsite class UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Bill and I ask a question of the attendees:
Which of the following are “disciplinary” actions?
- Letter of Caution
- Letter of Warning
- Letter of Counseling
- Letter of Expectation
- Placement on a PIP
- Denial of a WIGI
The answers we get often make us cringe. We’ll give you ten points if you can pick them out without error. Go ahead, take a look…we’ll wait…and the answer is…there are only FOUR disciplinary actions on that list: Reprimand, Suspension, Demotion and Removal. That’s it. Everything else on the list is NOT a disciplinary action, which means it holds ZERO significance in progressive discipline.
Items 1-5 have no legal value and often create problems for the agency that might not exist were they not implemented. Consider the recent EEOC case Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016). Here’s what happened: SSA employee Meaghan F. suffered from migraine headaches and had exhausted all of her annual leave and sick leave and had used more than 240 hours of Leave without Pay (LWOP). She provided a doctor’s note that said she might be absent “from time to time” in the future if her migraines worsened.
Not very specific medical documentation, is it? The supervisor didn’t think so either, so he held a counseling session about her attendance and told her the medical information she provided was insufficient. We don’t have a problem yet; a good supervisor should talk to an employee about her attendance if it’s becoming a problem. But the supervisor took it a step further and issued a Letter of Counseling about the problem, which he placed in her personnel file. So, what did the employee do? She filed an EEO complaint and said the letter was discriminatory because she had a disability (migraine headaches) that caused her leave issues.
You’ll be happy to know that the agency prevailed on this, as the EEOC held that a letter of counseling is not discipline and that the supervisor had a legitimate, nondiscriminatory reason for asking for more specific medical information. But, that didn’t stop the agency from having to go through the lengthy EEO process, which now takes a good two to three years on average.
Though it’s speculation on my part, I can’t help but wonder, had the supervisor not issued the letter of counseling and put it in the OPF, whether the employee would have filed a discrimination complaint. I guess we’ll never know, but this case underscores what we’ve been telling supervisors for years: sometimes the less you do, the better off you’ll be. [email protected]