By Deborah Hopkins, March 10, 2020

I spend most of my days talking about discipline. It’s a topic that I find very interesting, as do a lot of you in the FELTG Nation. In our field, of course there are a lot of boring discipline cases about the guy who is late to work or doesn’t follow an SOP and is disciplined accordingly. There are also attention-grabbing cases about employees who view pornography on government computers, urinate in mop closets, take food off inspection lines to do vulgar things, destroy government property, and on and on. If you work in federal employment law, you never have to make anything up.

One of the topics worth focusing on (and hey, there’s a webinar about this next Thursday) is progressive discipline for employees who are multiple misconduct offenders. While reprimands usually correct misbehavior, in 15-20% of cases an employee re-offends with a subsequent act of misconduct. What’s more, in 2018 the Government Accountability Office issued a report that said 25% of the 10,000-12,000 people suspended in the federal government every year have been suspended at least once previously.

Misconduct is loosely defined as the violation of a workplace rule. Discipline for misconduct is a way to correct bad behavior, or to teach the employee a lesson. Some agencies even discipline to send a warning message to other employees in order to deter future misconduct. The underlying principle in determining the appropriate level of discipline is that the penalty is proportionate to the offense. Agencies determine what’s appropriate with the guidance of the Douglas factors.

But some employees just don’t (or won’t) learn their lesson even after being disciplined, and that’s where things typically escalate. Enter progressive discipline. The general principle is “Three Strikes and You’re Out” when it comes to breaking minor rules and being disciplined in the federal workplace. This has been a widely accepted approach for longer than most of us have been alive; indeed, it pre-dates the Civil Service Reform Act and was standard in cases when we still had the Civil Service Commission. Three strikes is not a mandatory requirement, of course. Some supervisors allow employees four, five, or six strikes – or even more.

However, if an agency chooses to rely on past discipline in the Douglas factors analysis, any past, unexpired discipline at all is an aggravating factor in determining the appropriate penalty. In 2018 President Trump issued Executive Order 13839 that clarified prior misconduct for any charged offense – not just the current offense – could be relied upon in using progressive discipline. For example, a previous Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL, as would be a prior Reprimand for AWOL. This been the law for decades, but had been misunderstood in recent years.

Take a look at a few cases where agencies used progressive discipline, and MSPB upheld the removals:

  • Grubb v. DOI, 96 MSPR 361 (2004): Removal was warranted for two charges – making repeated unfounded and unsubstantiated allegations concerning her co-workers’ and supervisors’ alleged misconduct and failure to follow her supervisor’s instructions in violation of a direct order – because the appellant had received four suspensions within a two-year period. [Can I just mention that I cringe at how those charges are drafted…but that’s another article.]
  • Blank v. Army, 85 MSPR 443 (2000): A reprimand and two suspensions preceded a removal action, and the MSPB upheld the removal because the past discipline was an aggravating factor.
  • Alaniz v. USPS, 100 MSPR 105 (2005): In one year alone, the appellant received four suspensions, so a fifth offense in the same year warranted removal.

I think most FELTG readers would agree that these cases show egregious examples of repeated misconduct. I would even hazard a guess that removal could have been upheld a couple of suspensions sooner, had the agencies above chosen to go that route. However, they chose not to and under the law that is their right.

Believe it or not, though, removal is appropriate in cases of “minor misconduct” where employees have been disciplined in the past and continue to violate workplace rules. See Ferguson v. USPS, 19 MSPR 52 (1984) (When past disciplinary records indicate unreliability and a failure to comply with agency regulations, the penalty of removal does not exceed the limits of reasonableness even for cases involving minor misconduct such as “being out of the facility while on the clock without permission.”) Foundational MSPB case law tells us that the agency need not impose the minimum penalty possible so long as the penalty imposed is reasonable. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Of course, because progressive discipline is not mandatory, sometimes agencies employ the “One Strike and You’re Out” approach. Next month, we’ll look at cases where progressive discipline was not used, because it wasn’t necessary. See you then, if not before. [email protected]

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