By William Wiley, April 30, 2019

Here in the United States, when trying to understand a complex problem with many parts, we say we are trying to “figure out” what to do. In Britain, the phrase that is more likely to be used is to “sort out” a problem. Well, it’s time for some “sorting out” of several terms that are routinely misunderstood by a number of people in our business.

Discipline: Not finding a definition of this word in statute or regulation, I resorted to good old Google. Discipline is defined as “using punishment to correct disobedience.” That aligns with what you often hear in human resources, that we use discipline to “correct behavior,” not to punish. Without getting into the niceties of whether we embrace or reject the word “punishment” as being related to discipline, I think it’s fair to say that we take a disciplinary action in the civil service in the hopes that the employee on the receiving end learns a lesson and does not engage in future misconduct.

With a definition this broad, we could call just about any action taken by a manager toward an employee with the intent to preclude future misconduct “discipline.” We could require the employee to wear a dunce cap or stand in the corner with his nose against the wall, or, perhaps, we could use medieval stocks or the rack. Yes, the mind boggles with options for delivering negative reinforcement (fancy psychology talk for “punishment”).

In federal employment law, we have to be very careful what we identify as “discipline.” That’s because an important tool for federal supervisors is the concept of “progressive discipline.” In broad terms, progressive discipline says that when it comes to correcting behavior, we often start out with a low level of discipline. If that works to correct behavior, everybody wins. However, if the employee engages in subsequent misconduct following a low level of discipline, the supervisor is justified in moving to a more severe disciplinary tool because the low-level discipline obviously did not work. In other words, the supervisor “progresses” up the levels of discipline trying to find something that works to correct behavior, or eventually the employee can be removed for failing to respond appropriately to discipline. As the Court of Claims said years ago, the government does not have to retain as an employee an individual who does not respond to discipline. The application of progressive discipline weeds out those who can be rehabilitated from those who cannot.

Although many actions can be defined as “discipline” using the broad definition above, it’s only a narrow selection of those actions that count as discipline for the purpose of using the concept of progressive discipline. For a supervisor to be able to use prior discipline as a basis for enhancing a penalty for subsequent misconduct without having to re-litigate the prior action, the disciplinary action must meet three criteria, see Bolling v. Department of Air Force, 9 MSPR 335 (1981):

1. The action must be given to the employee in writing;

2. It must be recorded in the Official Personnel Folder; and

3. It must be grievable to a higher-level supervisor.

There are only two government-wide disciplinary actions that meet these criteria: reprimands and suspensions. (Demotions and removals also are disciplinary actions, but not a part of the concept of “progressive” as they are not intended to correct behavior.) Therefore, when applying the concept of “progressive discipline” to justify an enhanced penalty, these are the only prior actions that are relevant in supporting that justification.

An agency has the authority to characterize other actions as “disciplinary,” either through agency policy or negotiations with a union. For example, I’ve seen collective bargaining agreements that state that an “admonishment” is a disciplinary action (also letters of caution, warning, and expectation). However, if that admonishment is not retained in the OPF or is not grievable, then it does not meet the Bolling criteria and should not be counted as prior discipline for the purpose of using progressive discipline. If you try to count one of these things as “discipline” for the purpose of an enhanced penalty, you have created a significant unnecessary burden for the agency, likely resulting in mitigation of the penalty.

Out there in the big wide world, “discipline” can take many forms, including an ice hockey player being stuck in a box or a basketball player being kicked out of a game for committing a couple of stupid technical violations. However, in our more limited world of federal employment law, the better practice is to use the term “disciplinary action” to refer only to those actions that meet the Bolling criteria as actions that can count toward progressive discipline. To do otherwise confuses and frustrates unnecessarily, and creates a potential pitfall for the unwary. Wiley@FELTG.com

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