By Barbara Haga, April 20, 2021

This third column will focus on how discipline might fit with the situation described first in the February column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.”

As a result of the OSC action, the Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.

Let’s look at performance errors handled through conduct procedures.

Performance Errors and Conduct

As noted last month, there is nothing mentioned in any of the documents posted on the OSC website that indicated the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are terrible errors. When there are performance errors, we might think of performance procedures as the proper remedy. However, sometimes a performance approach doesn’t make sense. The risk of allowing the person to continue to perform the work after discovery of such errors in my mind is unacceptable.

Performance errors don’t have to be intentional to be actionable under conduct procedures.  Negligence and failure to follow procedures are types of charges that might be used when performance errors are so serious that the agency would find a performance opportunity period intolerable. I wrote a series of columns on this topic in September, October, and November 2017.

752 Cases and Performance Errors

The cases I discussed in the prior columns dealt with actions that, for the most part, threatened people’s safety and well-being. All resulted in removals. One was a paramedic who failed to check the drug box to make sure it was properly filled and secured before departing for the day.  Unfortunately, later that day, she needed a drug that should have been usable but wasn’t there. Providence intervened because another truck had responded to the call and their drug box was intact so the drug could be administered to the patient. In this case the paramedic had prior discipline for failure to follow procedures. Publicover v. Navy, DC-0752-15- 0003-I-1 (2016) (ID).

A second case involved a VA technician who did not properly sterilize instruments even after being recently counseled about proper procedures. The problem here should be obvious to all – the danger of infection through use of dirty instruments. The instruments that were not properly sterilized made it all the way into an operating room before they were discovered. The VA had to discard $1,000 worth of supplies that had been exposed to the dirty instruments, and there was a delay in being able to perform the surgery.

The Board decision includes an interesting discussion of remorse and potential for rehabilitation in this type of circumstance. Mr. Williams was very sorry, but that didn’t convince the Board to allow the AJ’s mitigation to stand. Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion Fed. Cir. October 18, 1995.

In Hunter v. Navy, DC-0752-11-0325-I-1, (2011) (ID), a police officer was removed for failure to follow procedures related to responding to a call. He was not dispatched to respond to the scene and the situation was not an emergency (high probability of death or serious injury) under their procedures. Hunter responded using lights and sirens, which was also against established procedures. In the process, his vehicle was involved in an accident and totaled.

Negligence and Similar Charges

Negligence is a subset of poor performance. Negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Board decisions tell us that where an act of carelessness or negligence results, or could result, in serious injury, a more severe penalty may be warranted.

Similarly, charges of failure to follow established procedures or careless workmanship could also result in severe penalties. Many actions that Federal employees perform from law enforcement work to medical treatment have horrible consequences if not performed correctly. But what about jobs that have legal responsibilities?

What happens when an employee fails to follow a law that applies to her assignment?  What if the person has the proper training but still fails to uphold the provisions of that law? What would happen if a contracting officer failed to follow contract law in awarding a contract?  What if an NLRB employee failed to enforce labor law in a case involving a private sector company or an FLRA employee failed to enforce 5 USC 71 in a Federal agency case?  What if a budget officer violated appropriations law in approving use of funds? Assuming we could prove that the law was violated, I think that most of us would come to the conclusion that there would be serious consequences.  

According to the OSC press release, this Air Force EO Officer was found to have “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”

Does such a finding warrant disciplinary action? I believe an argument could be made that it does. When I first read an article about this case, I thought I was reading about an actual removal not a reassignment. I certainly didn’t expect to read about issuance of a letter of counseling.  What purpose did that serve? If the person was no longer in the position and had no involvement in EEO work, how could she repeat the infraction?

There are cases where an HR official has been disciplined when that individual failed to carry out responsibilities properly. There are several OSC cases where HR officials violated veterans’ preference and were disciplined.  A GSA GS-15 HR director was removed for fabricating three discontinued service retirements Hathaway v GSA, DA-0752-92-0689-I-1, (1993). The answer this time, however, was different. C’est la vie. [email protected]

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