By William Wiley, September 13, 2017
If you have been to any of our FELTG accountability seminars, you know that we are big fans of performance-based removals. When it comes to firing bad employees, if the choice is between initiating the misconduct (5 CFR 752) approach or the performance (5 CFR 432) approach, with one exception, we recommend that the supervisor always choose the performance procedures.
Let’s start with the exception. If an employee engages in a single act of misconduct that’s so bad that it warrants removal, then fire the employee for misconduct. If an employee hits a coworker between the eyes with a two-by-four, it makes no sense to issue a PIP and give him a chance not to hit anyone else for the next 30 days. A singular act of first-offense serious misconduct warrants immediate use of the 752 procedures.
In comparison, lesser acts of bad behavior should always be screened to see if they can be dealt with by use of the 432 procedures instead. If the employee’s bad acts can fairly be considered as evidence of Unacceptable Performance on any critical element, the supervisor has a choice between 752 and 432. Here’s how the two options play out:
The Players
Pam is a wise, experienced employee relations specialist. She has seen most of it in her career, and reads MSPB decisions that address everything else. She’s comfortable using the 432 procedures, and almost always recommends them as a good option to supervisors who are dealing with a problem employee. Pam is decidedly attractive in a classy sort of way, exceedingly charming, and has a solid, calm personality.
Pat, on the other hand, has a couple of years in the business, but hasn’t found a need to do much case law research. She used the 752 procedures a couple of times and thinks that they are the only way to go. Someone once told her that the 432 procedures were “hard,” and she never bothered to learn much about them. Pat is known to skip bathing several times a week, spits when she talks, and is afraid of squirrels.
The Scenario
Sally Supervisor needs help. She has a problem employee, Ed, who is causing problems, not producing, and not obeying rules. As luck would have it, the employee’s latest screw-up is not bad enough to fire him, but probably justifies an Unacceptable rating on one of his critical elements.
Incident 1
- Pat, being an old 752-aficionado, recommends a Reprimand. Discipline early, discipline often is his motto. Sally issues Ed a Reprimand, and Ed promptly files an EEO complaint claiming race, sex, and age discrimination as well as an administrative grievance claiming a violation of agency discipline procedures.
- Pam, appreciating the advantages of a performance removal, recommends a PIP. “PIP ‘em early, PIP ‘em often” are her by-words. Sally issues Ed a PIP initiation memo. Ed soon learns that the initiation of a PIP cannot be the basis of a race/sex/age/etc. discrimination complaint and is excluded from the agency’s administrative grievance procedure, as well.
Incident 2
A couple of weeks later, Sally reports that Ed has engaged in a second incident of bad behavior.
- Pat is all excited. She lives for progressive discipline. She recommends a three-day suspension. Sally dutifully proposes the suspension, Ed responds 24 hours later, and Margaret Manager imposes the suspension, to be served immediately. Ed then files a new EEO complaint as well as a second grievance.
- Pam is all excited, as well. The PIP specified that Ed could make no mistakes during the 30-day PIP. Because of this incident, the PIP can be terminated and Ed’s removal can be proposed now. Already, the 432 procedures have given the supervisor the option of removing Ed today rather than waiting for a third incident that will be necessary for a 752 removal.
Incident 3
Just a couple of days after he returns from his suspension, poor Ed commits a third act of misconduct/performance.
- Pat’s ploy to go with the 752-approach has finally paid off. Of course, had there not been a third offense, Ed would have dodged the bullet and remained an employee indefinitely. But the three-strike rule is activated and Sally proposes Ed’s removal. Margaret decides it, and Ed files his MSPB appeal.
- Pam already had a removal case at Incident 2. However, now that she has another incident, she has twice as many as are needed to declare old Ed to be Unacceptable. Sally proposes removal, Margaret affirms the proposal, and Ed files an MSPB appeal.
The MSPB Appeal
- Pat’s got some work to do. First, she has to prove that Incident 3 occurred. If she cannot, Ed gets his job back. Also, Margaret has to testify (with supporting evidence) that removal is the penalty warranted under a Douglas Factor analysis. If she fails here, MSPB can reduce the removal to a suspension. Pat’s burden of proof as to the charge and the penalty assessment is at the preponderant level; 51% of the evidence must support the agency’s conclusions.
- Pam, on the other hand, is carrying a smaller brief case. She only has to prove that EITHER Incident 2 OR Incident 3 occurred to have the removal sustained. She does not have to present ANY Douglas Factor penalty analysis because the Board cannot mitigate a performance removal. And her burden as to either incident occurring is only at the substantial level, maybe 40% of the evidence has to support the agency’s conclusion.
Conclusion
Folks, if you are working with an employee relations specialist who reflexively recommends that a misconduct removal is always to be preferred to a performance removal, you are working with an idiot. I’m sorry if that last line is offensive to some of you idiots out there, but this is not an opinion issue. This is a fact-based conclusion. I am exhausted by practitioners in this business who make recommendations that are not supported by the case law. If you can read the above and still remain committed to a belief that the misconduct procedures are routinely better than the performance procedures, there is something wrong with your ability to analyze facts and draw conclusions. Leave us. Go work in classification where you can’t hurt anybody. [email protected]
