A Practical Guide to Federal Civilian Employee A Practical Guide to Federal Civilian Employee Disciplinary Actions

• Author: Major M. Scott Magers
• Pages: 02

1. INTRODUCTION

   There is d iiell entrenched myth that it is impossible far managers tQ take disciplinary mion against civilian employees of the federal government. The genesis of this myth would be difficult to trace. but certainly the procedure for taking dlsciplinar) action 1s difficult and confusing.' In addition to the aptem'a inherent perplehea, the manager's lack of training and experience in the use of disciplinary procedures makes the process of taking adverse or disciplinary action against federal employees a frustrating matter.2

   Federal managers and supervisory perin recagnmng the procedure's complexcharged that "[tlhe critical factor of ciiiered emplo?ees are rarely dischargedadequately doing their jobs. The Civil Service system has prov~Ierl the equivalent of life tenwe (at least until retirement) once a brief probation period is parsed, absent what the gorernment considers a serious act of miscontluct."

   Whether or tint the system of taking adverse actions against civil^

   MILITARY LAM' REVIEW [YOL.i7

   of the argument lies the obvious need for managemecontrol its aark force, and on the other the necemerit system emplqees from arbitrary action on tsuperrimr?.' Campl~cating the issue further is the fact that the Government which is circumscribed 111 it.- actiiities by the Con-tirution. is the employer. One author has argued that the tenwn berileen employment rights and govemmenr pl'ocerlurer murt mure to the benefit of the federal employee "[bleeauie employment 11 an indispensable personal interest [andl ought to ~ e c e i ~ e maximum

   protection under the due procers clause " The same autha .

   iealized that this protection of gavernmei?tal employment right breeds complacency ani1 that "[olne of the main i.eiiaonb individual choose to work for the government i~ that they beliete that the thereby achiere personal secunt)."the public in the debate betaeen effective manageemployees and employee protection from arbitraryignored Perhapa It is true chat "[tihe more entreiicrnent \vmk force. the less hkel) it becomes that the public can re^

   wive far and effeectm treatment f1om i

   Des ite the themetical debate avei of. the current proceilurei ford

   Xjonetheleaa. the imerest

   19771 CIVIL1.W EMPLOYEE DISCIPLIXARY ACTIONS ployeea, statistics reflect that the number and rate of disciplinary actions in the Department of Arm? continue to rise.Y The Department of the Armr .Annual Evaluarion of Civilian Personnel Xan~

   are instituting removal action far unsatisfactory performance rather than assigning uneatisfactorj performance ratings " lo In light of these increases in the imporitigerial personnel and their legalproper procedures for Imporlng

   The .irmy lawyer's involvement in this area of the Ian 1s a relatively recent development. It !vas not until July of 1974 that. 8s a normal ractice, military attorneys became ~nrol\ecl in giving arb

   stitutional izdues rlealing with the adverse action praceia.14 Its pur- a: 44

   pelfarnance rat-FPN 43 fwrh in PPhl 752

   MILITARY LAW REVIEW [VOL. 7i pose 1s to e\plam the requremedure. This wll be a "how to'' gand consolidate the detailed inst

   that the procedure is aarkable-ili;ciplinar!. action. when appro priate. may be taken uirh mininium difficult>

2. DEFINISG EMPLOYEE DISCIPLINE .A. STATCTORI'LA.YG

   The 'tatmory pronsior. nhich authorize against employees in the competitive s e n m rliriilusl in the competitive service "may be Bithaut pay only far such cause as iiill promo service ' Is The statute also sets forth procetl

   employee subjected to disciplinar) action is entitled.18 Similarly, preference eligible employees are subject to adverse action "only for such cause a8 will promote the efficiency of the service." In the past, such emplogees had been accorded more extensive pracedural rights than ather classes of ernpl0yee3.~~

   To eliminate the distinction between rights available to different classes of emplay-ees, the President, by Excutive Order, granted all employees inthe competitive service "rights identical in adverse action case8 to those provided preference eligible [empl~eesl , . ." 23

   2. R EGIILATOR Y LASGCAGE

      Civil Serrice Commission regulations set forth the types of disciplinar! actions available for management use. One portion of the regulation deals xith the major actions of removal, suspension for more than 30 d a p furlough without pay, and reduction in rank or pay,24 while a subsequent portion pertains to the less drastic action of auspension for 30 days or le5s.25 These regulations and interpreting guidance are found in the Federal Personnel Manual s uhich Is the primary reference source for problems of federallabor

   3. TYPES OF ACTIOSS AVAILABLEFederal managers may initiate disciplinary actions against civilian employees that range from counseling to removal Other actions in-issuance of letters of reprimand, suspensions for 30 days or uspensiona for more than 30 days, furloughs wthout pay, and

      MILITARY LA\%' REVIEK IVOL. 77

      later subjected to more serious disciplinary action. Such use of the form !\as upheld in a case \$here an employee objected to its introduction dunng a Civil Service Commission hearing on an appeal of a removal action. The court stated, "It nould seem ludicrous, when conaidering whether a termination will promote the efficiency oi the Service, to foreclose the u ~ e of a report made by superiors with first hand knowledge of the facts, which show that the employee had a consistent pattern of inefficiency. .

      Although a supervisor should counsel an employee before taking formal disciplinary action, under some circumstances only strong, formal action will be appropriate. Ideall), in such cases a formal vritten reprimand will be adequate to correct the problem, and SUI- pension or removal irill not need to be proprimand, although considered a minor penalcedures which emphasize the gravity of theard performance underlying the action. Regulations promulgated by both the Civil Service Commission and the Department of the Arm! outline the procedures required for issuing a formal written reprimand. The Army's CPR grants an employee nho may receive such a reprimand many of the rights that are available to the employee who is to receive a notice of suspension or remo~2.l.~~

      The Civil Service Commissm regulation on adverse actions ex-pressly recognizes the use of iuspensm~s which may be denominated either major or minor rlepenrling on their length. Because the employee is in a nonpay status while suspended. the penalty typically reflects the seriousmas of the conduct at issue Although there is no regulatory limitation on the length of a suspension. the loss of the employee's services during the period normall? dictates that suspensions be of short duration. .&E nith other actions, the facti and circumstances of the indindual case will determine the length of the ~urpensm~,but because of the required formalities. the manager inust be certain that the proposed action is appropriate.

      Alrhough included as an adverse action in the Civil Sernee Commission regulations,38 a furlough is not considered a rlisciplinar> ac-

      ." 34

      tion. The Arm)'? CPR state? that '[dl furlough not to e~ceed 30 da)s 1s an actmn placing an employee in a temporaty nondut). and nanpay status due to lack of work or funds or for other iiondircipli~ naq reasons ''3s Consequently, the use of the furlough \\ill not be further ~I~seus~etl

      111 this article

      Civil Service Commission regulations list ietluctmn in pa) or rank as adverse actions." The Ainiy's CPR state> that reduction in rank

      procedure need not be utilized but the acceptance in1u-t be shoun to haxe been voluntary and not coer~ed.'~

      This paint may be 111~stiated by a case in which supervisor informed an employee that if hedid not accept a position demotion, the supervisor "ivould do something else." When the employee asked how long he had to canaider this option. he ) five minutes " i Federal Employee Appeals Authority fleld office found that this bas not a voluntary demotion because it was obtained by "time pressure" 44 in \.101at101? of reguldtor!. pronnons 45

      In many cases employees who have received notices of proposed disciplinary action resign to avoid the action Although the adverse action procedures need not be used when an employee resigns voluntarily, the Commission will accept an employee's appeal if he al-leges that his resignation war obtained by "duress. time pressure, intimidation, or deception." Freedom of choice 1s the key, so it is proper to infmm the employee that disciplinary action procedure will be initiated if he does not submit his resignation. The Commisiioii instructions state'

      tar) and appealable to the Commission

      Once a resignation has been submitted, an employee's request to withdraw the resignation must he in writing. Any rejection of the request muat include the reasons for denial.48 The FPM suggests that a valid reason for refiismg to accept the ii-ithdraoal hould be that the position resigned has subsequently been

      Courts will generall) presume a resignation to hare been voluntary unless the employee is able to submit sufficient widence to overcome that presumption In one case irhere an employee had re-signed upon receiving notification that a removal action iras being proposed, the court found no evidence of duress or coercion anti re-stated the iiell established Court of Claims' rule upholding "the i-01- untarinese of resignations where they were submitted to avoid threatened termination for cause." so

      The fact that the affected employee may consider a reassignment to be a "bureaucratic step daan" does not mean the transfer 1s a disciplinary action if there 1s no change in grade or pay. In Coin-

      an employee o ha refused a transfer from ngton. D.C to Cleveland. Ohio contended the proposed trans- B disciplinar! in nature despite the fact that it did not inxolie any reduction in grade or pa!. The court refused to find the transfer unlawful. pointing out that federal agencie- hale wile discretion...