By Deborah Hopkins, February 19, 2019

If you’ve been in the federal employment law arena for more than five minutes, or if you’ve read this newsletter in the recent past, you know that we (the People) have been without a quorum at MSPB for more than two years now. In fact, next Friday marks the end of Mark Robbins’ tenure as the sole remaining Board member, at which time the MSPB will have ZERO members for the first time in its 40-year history.

Last week, the Senate Committee on Homeland Security and Governmental Affairs voted to advance two MSPB nominees (Dennis Dean Kirk and Julia Akins Clark) to the full Senate for a confirmation vote – but the vote won’t be held until a third nominee is named (the remaining nominee Andrew Maunz withdrew his name last week), and clears committee to join them for a Senate vote. In case you didn’t know this: It’s not a legal requirement to confirm all the members together. However, the Committee Chairman, Senator Ron Johnson (R-WI) indicated that would be the process used. (Read the full detail of the committee meeting here.)

So, what will happen next? It’s anybody’s guess. Will the MSPB have to shut down until they get some leadership — or will the General Counsel run the place in the interim? Arguments can be made for either option.

As of today, the Administrative Judges are still holding hearings and issuing decisions on agency removal actions, and your cases still need to be as tight as ever to ensure a favorable outcome. Because if anything is appealed from a judge’s decision, it goes into a stack of 2,000+ cases that are sitting in boxes in the hallways, waiting for Board members to read them and issue opinions. Wouldn’t you rather NOT have to appeal a judge’s decision? Me too.

So what’s the best way to have a judge agree with your choice of discipline? Follow the law. In order to discipline a federal employee for misconduct, there are five legally required elements:

  1. A reasonable rule exists
  2. The employee knew the rule
  3. A preponderance of the evidence (more likely than not) that the employee broke the rule
  4. Choose a defensible penalty
  5. Provide due process

If you miss even one element, you lose your entire case. Let’s look the elements in turn and see how easy they are to check off — and how easy they are to screw up, if you’re not paying attention.

1. A reasonable rule exists. You cannot discipline an employee for breaking a rule that does not exist. The very definition of misconduct is a violation of a rule. So, if you want to reprimand, suspend, or remove someone, you can only do it if they have indeed broken a rule. Also note: the rule must be related to the job; you cannot enforce rules that have nothing to do with the workplace. For example, you can set a rule that an employee to always fill up a GOV’s gas tank when it gets below ¼ tank, but you cannot require that rule for the employee when driving his personal vehicle.

Case example: Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009)

2. The employee knew the rule. An agency cannot enforce secret rules against employees – that would violate the fairness federal employees are guaranteed. If you have a rule that employees wear closed-toed shoes in the office but you’ve never bothered to tell them the rule, you cannot discipline them for wearing open-toed shoes. There are some “commonsense” rules where notice is a given (for example, you don’t need a rule that says employees are not permitted to have a campfire in the breakroom), but when in doubt, TELL the employee the rule. Don’t assume the employee knows it.

Case example for further reading: Tudor v. Treasury, 639 F.3d 1362 (Fed. Cir. 2011)

3. A preponderance of the evidence (more likely than not) that the employee broke the rule – unless you’re at the VA in which case you only have a substantial evidence requirement, that the employee might have broken the rule. Preponderant evidence is not a huge burden, but you do have to have some evidence. Whether you saw the misconduct happen, or witnesses saw it, or you have video evidence or a confession, you need something to show the employee broke the rule. This should not be difficult. The employee has a lunch break from 12-12:30 and you, the supervisor, see the employee come back to his desk with a Chipotle bag at 1:10 – that’s evidence. Don’t make this more difficult than it needs to be. But please have evidence.

Case example: Mott v. DVA, No. 2017-1222 (Fed. Cir. 2018)

4. Choose a defensible penalty. Unless you’re at the VA, you have to justify why you selected the penalty (suspension or removal) you did. This is done by looking at the Douglasfactors and explaining the effect of the misconduct. We consider things such as the harm caused or the potential for harm, the person’s job level and type, any notoriety or publicity, any past discipline the employee has received, what we’ve done with comparators who have engaged in the same type of misconduct, and a number of other factors. The penalty must be appropriate for the level or instance of misconduct the employee engaged in. You may not be able to justify a first-offense removal for a person who got to work five minutes late to a job where being on time doesn’t matter because there was no harm. However, if your employee is an ER surgeon and someone died in those five minutes, you have a completely different scenario and removal might very well be justified. Let the Douglas factors be your guide, and keep in mind, the MSPB is only going to mitigate (change to something less) your penalty if it exceeds the bounds of reasonableness.

Case examples for further reading: Jacoby v. USPS, 85 MSPR 554 (2000); Webster v. Army, 911 F.2d 679 (Fed. Cir. 1990); Mott, supra

5. Provide due process. Federal employees who have successfully completed their probationary periods are entitled to due process in disciplinary situations. Due process has three steps:

  1. Notice of the charged misconduct and the proposed penalty (given by a Proposing Official);
  2. An opportunity to respond to the charges, and to be represented; and
  3. An impartial decision based on the information given in the notice and the response (given by a Deciding Official).

If you miss a step, you lose your case EVEN IF you have 50 witnesses and video evidence of the employee stealing the laptop, punching a customer, sleeping on the job, whatever. A due process violation, sometimes referred to as “losing on a technicality,” is literally a loser every single time. While there are cases where agencies don’t give the employee notice of the charges, or don’t notify the employee of her right to respond, we see most cases lost under the third prong — where the deciding official relies on some bit of information that the employee is not privy to. This is why it is crucial to work with your Deciding Officials on their proper role and encourage them not to go looking for extra information about the employee.

Case example for further reading: Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007).

I hope this helps. If you want more – and trust me, you definitely want more – then come to our MSPB Law Week in Washington, DC or Dallas, TX, so we can show you how to win your case in front of the judge, and quickly get back to the business of fulfilling your agency’s mission. Hopkins@FELTG.com

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