By Deborah Hopkins, May 20, 2020
A few weeks ago, I wrote an article about progressive discipline, and explained how a time-tested approach to discipline in the federal government provides for a “three strikes and you’re out” mentality, at least when it comes to minor workplace misconduct. There are times, however, when an employee engages in misconduct so egregious that the agency skips the first two steps in progressive discipline – typically a reprimand and a suspension – and jumps right to a removal. After all, an underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Castellanos v. Army, 62 MSPR 315, 324 (May 4, 1994). There are times, though, an agency determines the employee has done something so bad, he should not be given such a chance.
Let’s look at a few of those cases.
You were warned
Sometimes agencies choose to issue warnings to employees, rather than issue formal discipline. A warning is an aggravating factor that is most commonly used under the Douglas factor for clarity of notice: How clearly was the employee on notice that there was a workplace rule in place?
Take, for example, the GS-12 attorney with a discipline-free record who was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone). The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal. This appellant argued that he didn’t understand the warnings because the language used by the agency regarding “maintaining his composure” was confusing. Nice try, but that expression was an aggravating factor that expressed a lack of remorse. A GS-12 attorney should know what maintaining composure requires, so the MSPB upheld the removal. Pinegar v. FEC, 2007 MSPB 140.
One strike and you’re out
Some charges, by their very nature, have been recognized to be removal offenses even if there is no prior discipline. One such charge is Failure to Cooperate in an Investigation. Take a look at the following cases which all involved some version of an employee refusing to participate in agency-authorized investigations: Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Hamilton v. DHS, 2012 MSPB 19. Also check out Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation).
Another charge where there’s not always another chance for the employee is Threat, or some version thereof (such as Making Disruptive Statements). In one such case, an appellant’s conditional threat that he would cut off his supervisor’s head warranted his removal despite a lack of prior discipline and four years of service. The agency successfully argued that such behavior affected the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service. Robinson v. USPS, 30 MSPR 678 (1986), aff’d., 809 F.2d 792 (Fed. Cir. 1986) (Table). A note to practitioners: If you’re going to charge Threat, you’re going to need to be sure you have evidence to support the Metz factors. Come to FELTG’s Workplace Investigations Week in Denver August 24-28 if you’d like to learn more about that.
Multiple specifications are aggravating
Sometimes an employee engages in an act of misconduct several times, but has no disciplinary record because the agency hasn’t yet issued discipline (which, as a side note, contradicts my colleague Bill Wiley’s mantra “Discipline early, discipline often”). In those cases, the agency may choose to discipline the employee, and show the egregiousness of the conduct by listing multiple specifications, thereby justifying the penalty of a removal for a first offense of misconduct. A fairly recent case provides a perfect example of such a strategy: A first-offense removal was upheld because there were 10 specifications of continued sexual misconduct that occurred after appellant was asked to stop his inappropriate behavior. Adkins v. DoD, SF-0752-16-0294-I-1 (2016)(NP).
Harm or potential for serious harm
The Air Force has a rule: A Division 1.3 explosive must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. One of our most-discussed-in-class cases at FELTG seminars involves a WG-09 Motor Vehicle Operator with 28 years of outstanding service, who left a truck with an intercontinental ballistic missile unguarded in a motel parking lot (keys in the ignition, doors unlocked) for 45 minutes, and then lied about to his supervisors when they confronted him. Though 28 years of service is a mitigating factor, and a discipline-free record is generally an asset, leaving a missile containing 66,671 pounds of explosive propellant unguarded was egregious enough to warrant a first-offense removal. Dunn v. Air Force, 96 MSPR 166 (May 24, 2004).
Remember, the goal of discipline should be to prevent future misconduct from occurring. But sometimes, employees go over the line and there’s no coming back. As long as your Douglas factors analysis supports removal, and the penalty is not grossly disproportionate to the offense, you’re free to remove an employee with a discipline-free record. For more on discipline, join FELTG for the Virtual Training Institute’s Taking Defensible Disciplinary Actions, June 1-3, or Developing & Defending Discipline, June 23-25 – from wherever you’re working. Hopkins@FELTG.com