Sorting Things Out: Defining Adverse Actions

By William Wiley, May 21, 2019

In a previous article, I laid out the distinction between the general concept of “discipline” and what constitutes “discipline” relative to the application of “progressive discipline” in the federal workplace. In this piece, we take on an even more complex concept: adverse actions. Consider these interrelated (and somewhat confusing) truths:

• Not all discipline is an adverse action, but most of it is.
• All suspensions are adverse actions.
• Most adverse actions are appealable, but not all of them are.
• Not all adverse actions are discipline.

Unlike discipline, the term “adverse actions” has a nice legal definition. Turn to Chapter 75 of Title V of the United States code and you will see the title “Adverse Actions.” Within that chapter, you will find two subchapters: Subchapter I for suspensions of 14 days or fewer and Subchapter II for suspensions of more than 14 days, demotions, and removals. So right away, we know that suspensions, demotions, and removals enforced for disciplinary purposes are by statutory definition, “adverse actions.” In comparison, a reprimand, though disciplinary, is not an adverse action.

And here is where we find one of the common misconceptions in our business. Prior to the Civil Service Reform Act of 1978 (CSRA), the term “adverse action” was defined as applying to appealable (to the Civil Service Commission) long suspensions, demotions, and removals whereas the term “disciplinary action” was defined as applying to non-appealable short suspensions. Subsequent to the CSRA, shorter suspensions still are not appealable and longer suspensions/demotions/removals are (to MSPB). Unfortunately, post-CSRA there is a tendency among the uninformed to continue to use the old concept of “adverse action” as applying to “appealable” actions only.

That’s simply not what the law says. If you’re taking away an employee’s salary for disciplinary purposes by a suspension, demotion, or removal, that’s an adverse action and has been since October 13, 1978. The proper way to think of the distinction between Subchapter I and Subchapter II of Chapter 75 is to refer to “non-appealable adverse actions” (Subchapter I, short suspensions up to a pay period in length) and “appealable adverse actions” (Subchapter II, longer suspensions/demotions/removals).

So now we know why not all discipline is an adverse action (remember reprimands), all suspensions are adverse actions (the title of Chapter 75 of Title V of the USC), and not all adverse actions are appealable (the distinction between Subchapter I and Subchapter II). But what about the claim that not all adverse actions are discipline? There are two places that line is drawn for us:

Statutory: The full title of Subchapter II of Chapter 75 includes an additional personnel action within the definition of an appealable adverse action: furloughs for 30 days or less. I know, I know; the proper phrasing would be “thirty days or fewer,” but we’re stuck with what those folks in Congress have written, at least until they hire an eighth-grade English teacher to do a little editing for them. At any rate, as way too many agencies were forced to remember in the wake of government shutdowns, furlough an employee for 30 days or fewer and you have to use the adverse action procedures of Title II of Chapter 75 (30-day notice period, right to respond and representation, appealable to MSPB). However, a furlough is based on lack of funds, not misconduct. It does not meet the definition of “discipline.” And that’s an important distinction as you will see in a moment.

Case Law: Appealable adverse action removals based on the employee’s misconduct are disciplinary, by definition. However, adverse action removals based on the employee’s medical inability to perform are not disciplinary as there is no misconduct involved, again relying on the definition of discipline. You won’t find this in the law, but you will find it developed as a concept in MSPB decisions over the years.

So we have adverse actions that are “disciplinary” and adverse actions that are “non-disciplinary.” The distinction is important because the Board’s case law related to disciplinary adverse actions does not necessarily apply to non-disciplinary adverse actions. The main precedent relevant to the day-to-day practice of our business and this disciplinary/non-disciplinary distinction is Douglas v. Veterans Administration, 5 MSPR 280 (1981). As every practitioner learns in the first week of employment, if an agency takes an appealable adverse action based on misconduct against an employee, it will live or die by its documentation and defense of its analysis of the famous 12 Douglas factors. However, if the appealable adverse action is not based on misconduct (e.g., a removal for the medical inability to perform), then the Douglas factors need not be analyzed in defense of the penalty. The MSPB will not mitigate a medical-inability removal or a furlough to a lesser level, so there’s no requirement to fire up the old Douglas Factor Worksheet to defend your penalty selection.

Now, if there is anything you need to sort out, join me and FELTG President Deborah Hopkins for MSPB Law Week in Dallas June 3-7, 2019. Wiley@FELTG.com.