Kiss-*ss Email Meets a Kick-*ss Last Chance Agreement
By Dan Gephart, November 13, 2024
Quick facts:
- Traditional discipline isn’t always the most effective or efficient approach.
- If writing a last chance agreement, make it clear that any future misconduct or unacceptable performance will be considered a breach.
- The Reveles case provides a perfect example of the language to use in an LCA.
Who doesn’t love a redemption story? A real-life inspirational tale of an individual turning their life around gives us hope in our fellow humans. We like to believe in the best of people. It’s why we’re so willing to give people “one more chance.”
Until they let us down a second time.
In the world of Federal employment law, FELTG has always been a firm believer in the appropriate use of alternative discipline. If you think you have to remove the employee now because things just couldn’t get worse, wait until you screw up the details of the removal (or suspension or demotion). Alternative discipline lets you avoid those pitfalls. One of the most popular forms of alternative discipline gives the employee a chance to create his, her or their own redemption story. It’s the last chance agreement, and it’s simple.
- The agency holds the employee’s penalty in abeyance.
- If there is another act of misconduct or incident of unacceptable performance, the penalty takes effect. And, if the penalty is removed, the employee is removed immediately without appeal rights. (The employee can appeal a breach of the LCA but not the original penalty).
- However, if there are no future incidents for the life of the agreement, the penalty will not take effect, and the proposed action will be canceled.
Win-win, as they say. The employee keeps the job, you retain an employee, and it’s another wonderful redemption story.
Unless they let you down again.
But that’s OK, as long as you pay attention to the details. Make it clear in the agreement that any future misconduct or unacceptable performance will be considered a breach.
I like to discuss Reveles v. DHS, DA-0752-08-0306-I-1 (2008)(NP) because it’s a great example of how to handle a breach of LCA. Also, it’s one of FELTG’s founding father Bill Wiley’s favorite LCA cases, one he calls the “kiss-ass” case.
Customs and Border Protection notified the appellant, a GS-12 supervisory border patrol agent, of its proposal to remove him on charges of misuse of government computer and lack of candor. Four months later, the chief patrol agent sustained the charge of misuse of government computer. The agency then offered a last-chance agreement, where it agreed to hold the removal in abeyance for 24 months, provided the appellant agreed to abide by the terms. The appellant signed the LCA a few days later, admitting that his use of a government computer to send emails with inappropriate jokes was misconduct.
Six months after signing the LCA, the appellant sent an email to 39 co-workers in which he referred to another co-worker as a “kiss-ass.” And like that, the employee was removed. The agency called the misconduct “offensive and against Agency policy,” and noted it “demonstrated an unacceptable lack of professionalism and constitutes a violation of the Last Chance Agreement.”
The appellant, of course, filed an appeal. He claimed he was in compliance with the LCA because he meant to send the email to a close friend, who would not have been offended. He claimed the removal was too harsh for his level of misconduct
The judge was not persuaded. She noted the LCA’s language that “any violation of this agreement, including one instance of any type of misconduct, can be just cause for removal,” as well as the agent’s previous admission that misuse of a government computer was misconduct. [email protected]
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