By Deborah J. Hopkins, July 24, 2023
FELTG readers who’ve been around a while know how many times we have preached against using letters of counseling, caution, warning, and the like. If an agency wants to counsel, caution, or warn an employee, that is absolutely understandable and we support it – but don’t put it on letterhead, just put it in an email. Something about that letterhead makes the employee feel they are being disciplined (although they are not) and they are more likely to file a complaint, grievance, or other challenge.
A new NP MSPB case, Petoskey v. VA, SF-3443-16-0808-I-1 (Jun. 21, 2023), has once again affirmed why these letters are just not worth your time. The employee sent an inappropriate email in July 2016, and the agency issued the employee a letter of counseling, followed by a written admonishment. The employee filed an MSPB appeal, which included a back and forth with the Administrative Judge (AJ) over jurisdiction. The employee appeared to be claiming the letter of counseling and admonishment were taken in reprisal for protected whistleblowing activity.
According to the case, the AJ “found that the letter of counseling and letter of admonishment were not the type of actions that are independently appealable to the Board, and the appellant failed to establish that he exhausted his administrative remedies before OSC regarding any allegations of reprisal for whistleblowing or other protected activities, which would be a prerequisite for filing an individual right of action (IRA) appeal on such reprisal claims.” The employee filed a petition for review, and into the backlog it went.
Fast forward to 2023 when MSPB issued its decision, finding no jurisdiction because the employee did not exhaust his administrative options at OSC before filing a Board appeal. It took SEVEN YEARS for this outcome.
I can’t help but wonder whether we’d even be reading this case if the agency had “warned” the employee via email instead of on letterhead. I guess we’ll never know. Hopkins@FELTG.com