By William Wiley, July 19, 2017
So many questions, there are. This month, we got a good one from a long-time reader about the use of Letters of Warning. The writer was being advised (accompanied by legal citations) that a Letter of Warning was considered as prior discipline by MSPB, although we teach in our fantastic FELTG seminars that it is not. Here’s our response:
Dear Poorly-Advised FELTG-Constitute:
In each of the three cases cited by your advisor as evidence that a Warning is prior discipline, the letter of warning considered as prior discipline is a “letter of warning in lieu of suspension.” These are effectively suspensions, not simply administrative letters of some type. USPS is the defendant agency in these cases and has wisely bargained for this particular type of punishment in its national labor agreement. MSPB has found these letters to be prior discipline in other agencies besides USPS, but only IF they are developed through agreement with the employee and the employee specifically accepts them as alternative discipline constituting prior discipline for the purpose of progressive discipline. Otherwise, they are referenced in disciplinary letters for establishing notice (Douglas factor 9) and nothing else. They simply are not discipline.
Discipline was defined for us in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision, the Board said that to be countable as discipline for progressive discipline purposes, the instrument must be in writing, stored in a system of agency records such as the OPF, and grievable. Back in 1981, the only widely accepted instrument that did that was the Reprimand. Letters of Caution, Letters of Warning, Letters of Expectation, etc., were used in varying ways by some agencies with many agency policies not allowing them to be grieved, and usually not storing them in the OPF. Therefore, the Reprimand developed universally as the first step in progressive discipline.
Of course, nothing stops an agency from coming up with an instrument, calling it anything it wants to call it (e.g., a Bad Day Memo), defining it as a disciplinary act in a policy statement, and ensuring that it meets the Bolling criteria. However, few if any have done that because there really is no legal benefit to adding to the list of disciplinary tools; Reprimand, Suspension, and then Removal are perfectly adequate for holding employees accountable and sooooo much simpler than trying to deal with poorly defined, confusing, additional discipline tools.
In a related arena, the courts have had to decide whether letters like Warnings and Cautions are “personnel actions” for an individual to be able to claim whistleblower reprisal. Well, sometimes yes and sometimes no, depending on the specific language, not the title of the document. They do not rise to the level of being a personnel action if they only admonish the employee to act in a particular manner, do not accuse her of anything wrong, and do not restrict her behavior. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015). Otherwise, they do. If a Letter of Warning accuses the employee of misconduct, it is a personnel action for a whistleblower reprisal claim. However, if there is no policy allowing it to be grieved or retained in a file system like the OPF, then it is not discipline.
Isn’t this crazy?
By far, the best approach is to stop doing Warnings, Cautions, Counselings, or anything else that smells like discipline, but may or may not be. They have NO value in progressive discipline and they confuse those who do not know our law. More dangerously, they may inadvertently become something we must defend against as a personnel action for reprisal purposes, all the way through MSPB (discovery, depositions, hearings, petitions for review) to federal court.
Here at FELTG we strongly recommend that you get the word out and stop doing warnings or cautions. They are an unjustified gamble. If you want to put the employee on notice of his misconduct (Douglas factor 9), do it in an email without calling it anything. Emails in general are not grievable nor do they have much potential to become “personnel actions” if there are no threats or accusations. If you want to discipline, use a Reprimand. Nothing less. Hope this helps. Wiley@FELTG.com