By Deborah Hopkins, August 19, 2020
On the MSPB side of federal employment law, FELTG has long held the stance that agencies should take disciplinary actions as soon as is practicable after a federal employee engages in misconduct. The longer an agency waits, the less justification the agency will have of the “harm” the employee caused, and the more unreasonable its penalty begins to look.
Take a look at Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID). In this case, the employee solicited a minor for sex and the agency removed him. The AJ reversed the removal because the appellant disproved the rebuttable presumption of nexus by highlighting the following details:
- There was no proof of publicity about the event.
- There was no customer knowledge; the agency had no minors as customers.
- His coworkers did not care about his conduct.
- His work performance remained good.
- The agency waited 5-plus months to fire him.
While Eotvos is “just” an administrative judge’s decision and has no precedential value, it illustrates the importance of timing. When an agency fires someone for misconduct it states as egregious, but then waits nearly half a year to take the action, a third party may begin to question how “bad” the misconduct really was if the employee wasn’t removed immediately.
The longer you wait, the more precarious your position, unless you have a darn good reason for the delay.
For precedential MSPB decisions on the topic take a look at Baldwin v. VA, 2008 MSPB 169 (If an agency’s delay in charging discipline is unreasonable, the charges may be dismissed), or Brown v. Treasury, 61 MSPR 484 (April 7, 1994) (In cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm).
Every now and then this important principle of “discipline early and often” finds its way into an EEOC case. Take, for example, Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019). In this case, the complainant, an Air Traffic Control Specialist, received an email from a coworker that contained a racial slur (an abbreviation of the n-word).
The agency initiated an investigation and found that the coworker did indeed used an inappropriate racial slur, and that such behavior violated its code of conduct, so the agency told the complainant that her coworker would be suspended for 30 days. The conduct did not occur again.
Sounds good, right? The agency did an investigation, took corrective action, and the conduct didn’t happen again. So, we’re good to go?
Not quite. Although the agency took corrective action, the EEOC found that the action was not “prompt” and, therefore, the agency was not absolved of liability. Why? The agency waited six months to discipline the coworker who used the n-word. Take a look at some language from the body of decision:
…[T]he Agency is responsible for the hostile work environment unless it shows it took immediate and effective corrective action. Although the Agency took effective corrective action, upon review, we find that the Agency’s action was not prompt. We note that the record clearly indicated that the investigation occurred in early December 2016… The Agency did not state how long the internal investigation took and failed to provide a copy of the internal investigation in the ROI for the Commission to determine how long the Agency investigated the matter…
The proposed 30-day suspension was not received by [the coworker] until May 16, 2017, nearly a month after it was allegedly drafted. There is no reason given for the delay. In addition, it appears that the Agency took over six months to issue the proposed disciplinary action. Based on the events of this case, we find that six months is not prompt. See Isidro A. v. U.S. Postal Serv., EEOC Appeal No. 0120182263 (Oct. 16, 2018) (finding that the Agency failed to take prompt and effective action when it investigated a single utterance of the word [n-word] in the workplace on July 15, 2017 and issued disciplinary action on November 21, 2017). As such, we conclude the Agency failed to take prompt action after learning of the harassment. Because the Agency failed to meet its affirmative defense burden, we find that it is liable.
In most cases similar to Sharon M., we see agencies lose because they did not investigate promptly or did not put effective corrective action into place, but here the delay in taking prompt corrective action is what caused the loss.
While a delay is not always the death knell for a disciplinary action (check out my 2019 article on laches here), I hope you see now that it can be, both on the MSPB and EEOC sides of an issue.
And if you join us for MSPB Law Week, next offered virtually September 21-15, we’ll discuss all these things and a whole lot more. Hopkins@FELTG.com