Prior Discipline Continues to Lose Respect at the Board

By William Wiley

My initial training in this business was in July 1977. Back in the day, the old Civil Service Commission ran weekly academies year-round in Washington, DC, with an academy devoted to each major personnel discipline: classification, staffing, training, labor relations, and employee relations. To practice independently in your chosen field, by CSC policy, you had to attend the academy and pass the final test for your discipline. If you attended and did not pass the final exam, you were sent home without the ability to work independently, and had to return to retake the program at a later date. Serious stuff.

One of the principles I remember clearly being taught in my employee relations academy was that of progressive discipline. Although not mandatory, employing progressive discipline was presented to us as a way to give an employee a fair chance to prove whether she could obey rules and pull her weight as a federal civil servant. And if she could not, progressive discipline laid a good foundation to show that the agency had been fair to the employee, and that the employee continued to be a problem.

The concept of progressive discipline is exceedingly simple: first offense = reprimand, second offense = suspension, and third offense = removal. Of course, there was room for an agency to decide to do something less, but that would be up to the agency’s discretion. The philosophy of progressive discipline was to initially use a warning (a reprimand) to try to correct the employee’s behavior. If the employee engaged in a subsequent act of misconduct, he was demonstrating that the reprimand did not work, because if it had worked, he would have obeyed the rules and not have engaged in more misconduct. As the reprimand didn’t work, the supervisor was empowered to move up to more serious discipline in an attempt to correct behavior, and that’s where the suspension became an appropriate penalty – a negative reinforcement of taking away pay to motivate rule-obeying conduct.

Then finally, if the employee engaged in yet another act of misconduct subsequent to the suspension, with rare exception, the last stage of discipline was removal. By engaging in a third act of misconduct, the employee was demonstrating that a suspension was inadequate to correct the bad behavior. If a reprimand didn’t work and a suspension didn’t work, the only option left was a removal. As I remember one instructor putting it so eloquently, “The government does not have to retain in its employment an individual who does not respond to discipline.”

And to me, that makes perfect sense if we think of discipline not as punishment for the sake of punishment, but as a tool for correcting behavior. If it doesn’t satisfy the objective of correcting behavior, then the non-responsive employee can go work elsewhere. The civil service deserves rule obey-ers, not rule breakers. That philosophy explains why agency penalty tables list only three offenses. Because in most cases, by the third offense the employee has demonstrated an inability to be corrected, and won’t remain employed any longer where he would get a chance to commit a fourth or fifth offense.

Unfortunately, today’s MSPB didn’t attend that academy. As far as I can tell, the Board expects an agency to tolerate indefinitely an employee who does not respond to discipline. If not indefinitely, it hasn’t given us any clear signs as to when enough is enough. Take, for example, MSPB’s recent decision in Ballard-Collins v. Navy, SF-0752-13-0617-I-1 (2016)(NP). In that case, the appellant three years previously had been suspended for 7 days, then later that same year, had been suspended for 14 days for subsequent misconduct. You would think that by those two actions, the employee would have been given a fair chance to learn that misconduct would not be tolerated; i.e., to correct her behavior.

Well, you would be mistaken. Even after these two suspensions the appellant committed yet another offense (disrespectful conduct) and was fired. On appeal, although the Board characterized the disrespectful conduct as a serious offense – particularly so because the appellant was a team leader – it mitigated the agency’s removal to a five-day suspension.

No kidding. Even though the appellant had demonstrated that suspensions don’t work on her to get her to correct her behavior, even after losing 7 and 14 days of pay as negative reinforcement, MSPB somehow reached the conclusion that maybe a 5-day suspension would get the employee to obey the agency’s rules.

Well, that’s just crazy; crazy IF you believe that an agency should not have to tolerate a rule breaker. You see, suspending the employee hurts the agency as it does the employee. The employee loses pay, and the agency loses the services of the employee for the duration of the suspension. The old Civil Service Commission gave us an end to this problem by teaching that ours is a three-strike game. The Board, on the other hand, gives us no clear guidance, effectively saying that an agency may have to tolerate a misbehaving employee indefinitely, suspending over and over again, regardless of the lack of effectiveness of the suspensions to correct behavior and the loss of productivity the agency suffers.

You want more crazy? I got more crazy. When coming up with a 5-day suspension, MSPB used this reasoning:

1. The prior 7-day suspension was for discourtesy. The prior 14-day suspension was for failure to follow instructions.
2. This last act of misconduct was properly characterized as discourtesy. Therefore, we have a second act of discourtesy.
3. The agency’s penalty table provides for a range of penalty for a second offense of discourtesy to be a one to five day suspension. Therefore, a five day suspension is warranted.

Notice how the Board ignored two critical aspects of this “second offense”:

• The agency issued a seven-day suspension for a first offense of discourtesy. One would think a second offense of something warrants more severe discipline than that administered for a first offense.
• The Board COMPLETELY IGNORED the fact that in addition to the prior suspension for discourtesy, the employee had been suspended for 14 days for failure to follow instructions. It’s as if the Board is saying that when we consider prior discipline, we are to consider only prior discipline for misconduct in the same category as the most recent misconduct. Well, that’s just ridiculous. If we go down that dark road, an employee would have to be disciplined progressively for each category of misconduct. In a typical penalty table, that would be dozens and dozens of categories. Expecting progressive discipline in each of them could add up to double that many of suspensions before we had finally plugged all the holes and were able to eventually fire the multitasking bad employee.

Ask yourself this philosophical, but critical, question: Which of the following makes for a better government?

1. A civil service in which employees who do not conform their behavior to agency rules after two formal attempts at correction normally can be removed.
2. A civil service in which employees who commit acts of misconduct can retain employment indefinitely regardless of the number of attempts at correction as long as each act of misconduct is of a different nature from the other.

This break from the old school three-strikes-and-you’re-out approach defies common sense and leaves us without any framework in which to assess whether prior discipline carries any weight when selecting a penalty for a particular current act of misconduct. This is exactly the kind of decision that makes it appear that the Board is overly protecting employees at the expense of an efficient, orderly, civil service discipline system. This was a third offense. The agency had administered two significant prior suspensions. The idea that only a five-day suspension is warranted as a maximum reasonable penalty now is unreasonable and strikes at the heart of the concept of federal employee accountability. Wiley@FELTG.com