By William Wiley, March 15, 2023
So you just read FELTG President Deb Hopkins’ article about Ortiz v. Air Force, DE-0752-22-0062-I-1 (Jan. 25, 2023) (NP). The decision is significant only because it is very unusual (some might say “weird”) for the Board to impose a second suspension after a misbehaving employee has already been reprimanded and suspended without his learning to obey agency rules.
Another recent decision raised this same issue. The Board mitigated a removal to a 10-day suspension even though the agency had previously suspended the employee for five days for the same type of misconduct. Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023) (NP). Similar to Ortiz, one of the charges brought by the agency in Spivey failed on appeal and the agency “never stated that it desired that a lesser penalty be imposed if only one of the two charges was sustained.” By not stating in the decision memorandum what the penalty would be if fewer than all the charges were sustained, if one or more charges is not sustained on appeal, the deciding official, thereby, allows the Board to independently assess the Douglas Factors and select a penalty. See LaChance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).
This second-suspension mitigation highlights one of the great unanswered existential questions about the Federal workplace: Why do agencies discipline misbehaving employees? Suspending an employee for misconduct requires the agency to expend significant resources:
- What happens to the employee’s work assignments during the suspension? Are they reassigned to hardworking coworkers who have to bear that extra burden? Must the supervisor bring in an outside contractor to do the work? Or does the employee’s work simply not get done during the duration of the suspension?
- Separate from devoting resources to the suspended employee’s workload, there’s the cost of defending the disciplinary action. Career Federal employees have a plethora of ways to challenge a disciplinary action: administrative grievances, union grievances, EEO complaints, complaints to the US Office of Special Counsel, complaints to the Department of Labor related to veterans’ USERRA rights, MSPB appeals if the discipline is significant, etc.
Given that there can be a considerable cost to an agency when it suspends an employee, and given that an agency usually doesn’t expend resources without some gain in return, what is the benefit that the agency hopes to attain in exchange for a misconduct suspension? Two possibilities come to mind:
- The agency hopes to motivate the employee to obey workplace rules. Behavioral psychologists call this technique for controlling behavior “negative reinforcement.” The theory is that by suffering pain (physical, mental, financial), the individual will learn to avoid that same pain in the future by refraining from engaging in the behavior that resulted in the pain. Cats sit on a hot stove only once. A child may learn acceptable social behavior as a result of the pain of isolation by being told to sit in a corner. In theory, a Federal employee deprived of part of a paycheck by a suspension will refrain from engaging in the misconduct that resulted in the monetary loss. It’s fair to say that the primary reason agencies suspend employees is to “correct behavior.”
- Is there some element of just plain old retribution in workplace discipline? An eye for an eye, a tooth for a tooth. You stepped on my foot; I’m going to stomp on yours. You caused me to suffer (by breaking a workplace rule), I’m going to make you suffer (by suspending you without pay) in retribution. Frankly, I would hope that this punishment-for-the-sake-of-punishment, separate from a desire to correct behavior, is not a desired “benefit” for an agency when it suspends an employee. However, when I look at how agencies have handled disciplining employees over the years, and how MSPB has validated those actions, I’m left with a belief that there is something beyond correcting behavior that motivates agencies to suspend.
If we accept that the primary objective of an agency suspending an employee is to correct behavior, then the Board’s mitigation to a second suspension in Ortiz raises a series of fundamental questions:
- If the agency’s initial suspension of three days did not motivate the employee to abide by workplace rules, what makes the Board think that a second suspension of seven days will teach the employee that breaking rules is to be avoided? In practice, a seven-day suspension is only five workdays, two workdays of lost pay more than the initial three-day suspension. Is the Board thinking that those extra two days of lost pay will cause the employee to begin to obey the agency’s rules even though the first suspension did not?
- How long should an agency have to tolerate a disobedient employee in its workforce? If these extra two days of lost pay do not result in the employee becoming obedient to the agency’s rules, is MSPB suggesting that another incident of this employee disregarding a directive should result in a suspension of an additional two or three more workdays of pay? What evidence is there that incrementally increasing the length of a suspension might eventually get the employee to obey the agency’s rules?
Perhaps the agency could have done more to protect itself from a mitigation. Not only did the deciding official not testify as to the penalty that would have been imposed if only one of the three charges had been sustained, but the agency’s own table of penalties indicates that a suspension is within the range of appropriate penalties for a third offense — “five-day suspension to removal.”
In Spivery, the table of penalties also allows for a suspension for a third offense. Effectively, agencies that have suspensions within the range for a third offense in their penalty table are acknowledging that a Federal employee who violates workplace rules may remain a Federal employee indefinitely.
There is a significant philosophical question in all of this, one that has not clearly been addressed. Why should agencies discipline employees? I would offer three plausible reasons and encourage agencies to adopt one, then clearly incorporate that into agency discipline policies:
- Suspensions are intended to correct behavior. If this is the agency’s objective, then the discipline policy should state it clearly. If the agency uses a table of penalties, then it should incorporate the three-strikes rule for guidance: reprimand, suspend, then removal. If a single suspension does not correct the employee’s behavior, there’s no evidence that a second or third suspension will.
- Suspensions are intended to punish. If this is the agency’s objective, then the discipline policy should leave room for more than one suspension, state in what situations more than one suspension would be reasonable, and then be prepared to have any removal mitigated to another suspension. The agency also should be prepared to continue the employment of individuals who repeatedly do not obey workplace rules and expend the resources necessary to do that.
- Suspensions have no place in a modern Federal workplace. This is the philosophical position adopted by a number of private sector companies. It is based on the belief that in a mature workforce, employers should not have to inflict pain on employees to get them to obey rules (and the employer should not have to bear the expense and inconvenience of a suspension).
Here’s one way the third option works. The first time an employee engages in misconduct, the supervisor tells the employee in writing that he has violated a workplace rule and that he should adhere to all rules in the future. This notice would be analogous to a reprimand in the Federal system. After notification, if the employee again violates a rule, the supervisor informs the employee of the rule violation and sends the employee home with pay for a day to contemplate whether he is willing to adhere to the company’s rules. If after this opportunity for contemplation the employee again violates a workplace rule, the supervisor offers the employee the opportunity to resign. If he refuses, the supervisor fires the employee. No punishment of the employee, no suspension-harm caused to the employer. Just the civil no-fault resolution of an inability to correct behavior situation.
Our civilization has evolved beyond the indentured servitude and physical bondage of earlier generations of our work forces. We no longer publicly flog or use a pillory with indentured servants who do not work hard enough. We are no longer in the early days of the last century when blue collar employees were seen as a lower class of citizen, beholden to and under the absolute control of their upper-class employers. The modern workplace is an egalitarian organization of knowledge workers with many flexibilities and employment options that were unheard of just a few decades ago.
Our Federal civil servants are getting older. Over the next few years, we can expect a large number of retirements from government service, with those senior citizens being replaced by younger workers who expect to be treated with respect as human beings rather than being forced and coerced into performing their jobs.
Perhaps, it is time for our management approach in the Federal government to evolve beyond discipling and punishing by suspending misbehaving employees, and instead focus on filling the civil service with individuals who follow directives without the need for pain. Wiley@FELTG.com
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