Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Maria A. Gregory v. United States Postal Service, No. 00-3123 (Fed. Cir. May 15, 2000).

Prior disciplinary actions that are subject to current challenge may not be used to support the reasonableness of a penalty.

The agency removed the appellant for failure to perform duties in a satisfactory manner. The penalty was based, in large part, on her prior disciplinary record. Upon appeal, the administrative judge (AJ) sustained the removal, also relying heavily on appellant's prior disciplinary record, which the AJ found revealed a pattern of conduct by the employee to disregard the agency's and her supervisor's expectations of her performance and conduct. When the appellant's petition for review was denied, this became the Board's final decision.

Upon review, the Federal Circuit affirmed the Board on the charge and its rejection of the appellant's affirmative defenses. However, it agreed with the appellant's argument that the agency and the Board erred when they relied on her three prior disciplinary actions, which were then the subject of grievance proceedings. The court noted that one of these actions had actually since been overturned and ordered expunged from the appellant's personnel record.

While the court agreed that prior disciplinary actions are an important factor when considering the reasonableness of a particular penalty, it noted that a penalty determination cannot be supported by an earlier disciplinary action that is subsequently reversed. If the grievances still pending were sustained and the prior actions ordered expunged the foundation of the Board's Douglas analysis would be compromised. Accordingly, it held that, as a matter of law, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits. The case was remanded to the Board for a new penalty determination.

It is hard to understand why the court entertained the penalty argument at all, and harder still to fathom its reasons for issuing this holding. The appellant, who was represented below, had been given an explicit opportunity by the AJ to challenge her prior discipline, and had declined to do so. Furthermore, the award reversing her reprimand was issued while the petition for review was pending before the Board, yet neither she nor her representative submitted it as new and material evidence for the Board's consideration. The court's decision does not acknowledge these peculiar facts, or make any mention of the Board's long-standing precedent for situations where an appellant does challenge the prior discipline.

Also absent is any hint about where an agency can reasonably draw the line when an employee mounts successive appeals of unfavorable decisions. In a mixed case, for example, where an employee can proceed through multiple levels of review, is an agency foreclosed from mentioning prior discipline until the Supreme Court has either ruled on it or denied cert? But perhaps most disturbing of all is the explicit determination that all challenges, the serious and the frivolous alike, must carry more weight than the deliberations of agency managers. There is no provision here for factual scrutiny and balancing of interests. Management, if challenged, is presumed to be wrong. It goes without saying that this decision constitutes an encouragement to challenge all discipline through any and all avenues, without regard to jurisdictional niceties or merit.

For all of these reasons, the Postal Service, joined by OPM and the Department of Justice, petitioned the court to rehear its decision, but the court declined. It is not yet certain whether DOJ will pursue further legal action; but in any case, for now we must concentrate attention on strategies to minimize the damage to ongoing legitimate actions. In discussions with agencies, several strategies have emerged, but it is too soon to assess how successful any of them would be.

Where challenges to successive actions are in the same forum, an agency may attempt to have them joined, since resolution of the earlier actions may be material to consideration of the most recent. With or without joinder, some practitioners are approaching the third party with an offer to present evidence and argument on all contested actions, the prior ones as well as the one that has generated the current challenge.

In many instances, the timing will allow an agency to simply wait for a prior challenge to conclude before issuing a proposal for the new action. Where an agency must delay, it is wise to tell the employee explicitly that management is deferring rather than waiving action. An agency could also cancel a relatively recent prior action, restore the employee to the status quo ante, and issue a new proposal which includes both the earlier and the more recent misconduct. As a further alternative, an agency could propose a new action, (without citing the prior discipline that is in review) but reach a written settlement agreement with the employee that addresses the current misconduct and consequences for future misconduct.

When an employee is displaying a pattern of repeated misconduct, an agency will certainly want to consider whether it is prudent to discipline each offense separately or to rely on stern non-disciplinary counseling until a number of offenses have accumulated, and the pattern can be addressed in a single action. An agency considering the latter strategy should be sensitive to any policy or negotiated language that may give formal counseling the status of discipline, and foreclose its use in a later action.

Finally, the Douglas factors include "the clarity with which the employee . . . had been warned" as an entirely separate factor from prior discipline, and some agencies are pursuing a strategy based on that distinction when the current and prior misconduct are related. They are explicitly not considering the current action as a (second, third, etc) for purposes of progressive discipline, where a challenge is under review for one or more of the prior actions. However, they note that for purposes of notice, the challenged prior actions should be given the same weight as nondisciplinary counseling, which the Board has found can serve as an aggravating penalty factor. See for instance, Howard v. USPS, 72 M.S.P.R. 422 (1996) and Maddux v. Air Force, 68 M.S.P.R. 644 (1995), review dismissed 91 F.3d 170. Where the misconduct or the pattern is inherently serious, third parties may look sympathetically at this argument.