By Deborah Hopkins, September 18, 2019
In the final installation of this three-part series, I will discuss how holding employees accountable does not take as much evidence as you think it does. Before you read this, though, take a look at the first two articles in the series:
I hope by now you’ll agree with me that the civil service system is not completely broken, but instead is being used inefficiently. Today we will tackle the final challenge, on the amount of evidence needed to take actions against employees for misconduct or performance-related problems.
A 2015 MSPB survey found that 97% of federal supervisors thought they needed more evidence to remove a federal employee that they actually do. The most startling number was that 94% of proposing officials thought they needed evidence beyond a reasonable doubt – that’s the amount you need to send someone to jail – to take an accountability action. The reality is, the evidence you must show to defend your action is far lower.
In DISCIPLINE cases, the level proof you need is called a preponderance of the evidence, which is that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If it is more likely than not that the employee violated a workplace rule (stole a laptop, falsified a time card, acted disrespectfully toward a supervisor, went AWOL, failed to follow a supervisor’s instruction, etc.), the agency has enough proof to discipline. If you are a supervisor and your employee said something disrespectful to you in a one-on-one meeting, you have a preponderance of the evidence. It’s as simple as that. You might have witnesses, video logs, an admission, or more, and that’s fine, but you don’t actually need that much evidence.
The most disempowering words a supervisor can hear from an advisor when the supervisor wants to take action against an employee who has violated a workplace rule is, “You can’t do that because you don’t have enough evidence.” In most cases, there actually is enough evidence to proceed.
In PERFORMANCE cases, the proof you need is substantial evidence, which is evidence that reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action, even though others may disagree. 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p). If an employee might have failed a critical element in her demonstration period, that is substantial evidence – even though other supervisors might disagree with the assessment of the employee’s performance. (Unless it’s a widget-based, black and white standard that is not open to interpretation.)
Additionally, with performance cases, unless your agency is exempted from the performance procedures in the statute, there is no requirement to do a Douglas factors analysis. Things like harm, length of service, work record and potential for rehabilitation do not have any impact – the MSPB can’t even look at those factors if the employee appeals a performance-based removal. The only evidence that matters is what happened during the 30-day demonstration period.
A special word to our friends at the VA – under 38 USC 714, which is just over two years old: Your burden of proof is substantial for both misconduct and performance cases for all employees covered by this statute.
Hopefully, you now see that you don’t need as much effort, time, or evidence as you thought you did, in order to hold a federal employee accountable. The legal minimum makes it easy to take the necessary actions so that an employee being paid by our tax dollars gets better, or else moves on to something else. Hopkins@FELTG.com