Imagine that you are a federal manager considering possible discipline against a subordinate employee. Have you provided advance written notice of proposed discipline to the employee? Check. Have you provided the employee with the documents on which the disciplinary action is based? Check. But have you alerted the employee to all factors you are taking into account for purposes of determining the disciplinary penalty? And have you given the employee an opportunity to address all those factors? If the answer is no, then the MSPB might conclude that you violated the employee’s right to due process, and reverse the disciplinary action.
Two recent cases show how seriously the MSPB treats due process violations. In both cases, the MSPB reversed agency removal actions and returned employees to work because the deciding official failed to provide advance written notice to the employee regarding all factors that were taken into account. As the MSPB explained, this due process violation deprived the employee of a fair opportunity to respond to the proposed disciplinary action, thus amounting to a violation of the employees’ due process rights. In this article, we summarize these recent cases and examine their significance for agency managers.
In Payton v. Department of Veterans Affairs, MSPB No. AT-0752-14-0055-I-1 (January 29, 2015), the employee was a Nursing Assistant at a VA geriatric dementia unit. The agency removed the employee based on three charges of misconduct: endangering the safety of a patient, leaving the work area, and lack of candor. In determining that removal was the appropriate penalty, the deciding official considered a number of factors, including the severity of the misconduct, management’s loss of trust in the employee, the intentional nature of the employee’s improper actions, and the potential negative notoriety that the agency could have faced as a result of the employee’s misconduct. However, the notice of proposed removal did not specifically indicate that the last two factors (intentionality and notoriety) would be considered.
You might be thinking: in a case of proven employee misconduct, it’s probably not a big deal to omit two factors (out of many factors) from the notice of proposed removal. Wrong answer! The MSPB reversed the removal, ordered reinstatement of the employee, and awarded backpay plus attorneys fees.
As the MSPB explained in Payton, “when an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors must be included in the agency’s advance notice of the adverse action so that the employee will have a fair and complete opportunity to respond to those factors before the deciding official.” Failure to provide advance notice under these circumstances “violates an employee’s right to due process.”
In other words, the deciding official should have informed the employee in advance that the factors of intentionality and notoriety would be taken into consideration. That way, the employee would have known to address those factors when explaining her side of the story to the deciding official prior to the removal decision. By providing advance written notice, the agency would have assured a fair process for the employee to defend herself before the punishment was determined by the deciding official.
A very similar problem was addressed by the MSPB in Kolenc v. HHS, MSPB No. DE-0752-12-0092-I-1 (September 11, 2013). In Kolenc, the employee was removed from his Consumer Safety Officer position with the Food and Drug Administration based on four charges: willful misuse of a government owned vehicle, misuse of a government gas card, failure to provide accurate time and attendance information, and failure to follow instructions. At the MSPB, the employee argued that the agency had violated his due process rights, and the MSPB agreed.
Specifically, the employee had indicated to management that a traffic ticket (related to one of the charges of misconduct) had been “cancelled,” but a manager called the police department and learned that the ticket was still active. The deciding official took this discrepancy into account and determined that the employee was not credible. However, the agency had not provided advance written notice to the employee that this discrepancy regarding the traffic ticket would be considered by the deciding official. The MSPB concluded that the lack of advance written notice violated the employee’s due process rights. Accordingly, the MSPB reversed the removal action.
Of note, not every alleged procedural problem will result in reversal of an agency’s disciplinary action. As the MSPB explained in Payton v. Department of Veterans Affairs, due process reversals will only occur if the deciding official considers “new and material information.”
In sum, federal managers must take care to provide advance written notice of all factors that are being considered in a proposed disciplinary actions. Due process mistakes can lead to MSPB reversal of the removal action, reinstatement of the employee, and an award of backpay plus attorney’s fees. The lesson is clear: procedural shortcuts are not allowed.