By Ann Boehm, January 14, 2020

Those of you who attend FELTG training and read our newsletters know that supervisors regularly tell us, “These are great ideas, but our HR staff or counsel won’t let us do this.”  I have come to realize that it is not the fault of the fine folks in HR and counsel offices.

I blame the Office of Folklore (OOF). Yes.  I coined this term. It’s not a real office. But it really exists. The Federal personnel community is a small one, and its insularity results in bad information being circulated as the truth. In our training, we try to defeat OOF, but it’s a formidable opponent driven by a risk-averse culture.

At a recent training, some astute students suggested it would be very helpful to have a “cheat sheet” for supervisors, that would enable them to demonstrate to OOF that they indeed have the authority to properly handle problem employees. (Let me also take this opportunity to remind supervisors, HR staff, and counsel of this important piece of information – HR and counsel are advisors and not decision-makers.  Typically, agency policies state that line managers should make discipline and performance decisions with the advice of HR and counsel.)

So to start off the new decade right, I have created the requested Cheat Sheet, which you will find below. Clip it out and keep it with you. I hope you find this to be helpful. And if you think of anything that I need to add to the cheat sheet, send me an email.  We are here to help.  [email protected]

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FELTG’s Supervisor Cheat Sheet
(How to Overcome the Office of Folklore)

PIPs/DPs should be 30 days long.

E.O. 13839, Section 4(c):  no agency shall “generally afford an employee more than a 30-day period to demonstrate acceptable performance under 4302(c)(6) of title 5, United States Code, before removing an employee for unacceptable performance.”

Melnick v. HUD, 42 MSPR 492, 101 (1989)—30-day PIP is sufficient

You don’t have to “prove” anything to put an employee on a PIP/DP; just articulate failure of a critical element.

“To prevail in an appeal of a performance-based removal under chapter 43, the agency must establish by substantial evidence that: . . . (3) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her an adequate opportunity to improve.”  Towne v. Dep’t of the Air Force, 2013 MSPB 81 (2013) (emphasis added).

The rationale for restricting the performance considered in a Chapter 43 action to the period occurring after the date of the notice of deficiency and opportunity to demonstrate acceptable performance is that consideration of earlier performance is ordinarily unnecessary when the employee fails the PIP. If the PIP provided the employee is adequate to fulfill the statutory purpose of affording a meaningful opportunity to demonstrate acceptable performance, then proof that the employee failed to perform at even a minimally acceptable level during that period usually is a sufficient basis for removal or reduction in grade. Evidence of the performance failures which preceded the PIP would therefore not be required.  Brown v. VA and OPM, 44 MSPR 635, 640 (1990).

Performance standards do not have to be lowered for an employee with a disability.

“An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.” The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Section III.A.1, Equal Employment Opportunity Commission Guidance.  

Some acts of misconduct warrant removal for a first offense.

Destruction, mutilation, or theft of a government record by custodian warrants termination (18 USC 2071).

 Both the courts and the Board have held that removal from employment is an appropriate penalty for failure to cooperate with an investigation. Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation). Hamilton v. DHS, 2012 MSPB 19.

Another 1st offense removal:

    • An employee’s verbal threat to a supervisor warrants removal despite the appellant’s lack of prior discipline and 4 years of service.
    • Such behavior affects the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service.

Robinson v. USPS, 30 MSPR 678 (1986) aff’d., 809 F.2d 792 (Fed. Cir. 1986)

E.O. 13839, Section 2(b):  “Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances.”

E.O. 13839, Section 2(d):  “Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.  Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.”

Different employees may receive different penalties, even for similar misconduct.

E.O. 13839, Section 2(c):  “Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.”

A reprimand can be issued without a prior warning.

There is no law that requires warning prior to issuance of a written reprimand. Union contracts may require this, though it’s unlikely.

Any past misconduct counts for progressive discipline—not just the same misconduct.

E.O. 13839, Section 2(e):  “When taking disciplinary action, agencies should have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.”

You can remove an employee for medical inability to perform before a disability retirement is granted.

Not only can an agency remove an employee for medical inability to perform before a disability retirement is granted – a removal on this grounds provides a rebuttable presumption that the employee is entitled to disability retirement.  Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993).

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