WHEN AGENCIES DRAG OUT DISCIPLINE INVESTIGATIONS

Throughout our career we benefitted from making a note of an excerpt, footnote or even snippet of a case, regulatory comment or policy transmittal. They proved invaluable at bargaining tables when the other side was blindly denying some fact, precedent or concept. We just ran across a good one in a new MSPB case where the Board had to deal with an agency that took discipline against an employee even though it let the investigation drag out for eons. That Board smacked the agency down and here is the critical passage that practitioner son either side of the table might find useful.

“Here, the strength of the agency’s evidence in support of its removal action is weak and, as noted above, was in large part prepared well after the fact. As we found above, after considering all of the evidence, the administrative judge correctly found that the agency did not prove either of the charges against the appellant. Furthermore, the agency’s delay in taking any sworn witness statements concerning the appellant’s alleged actions until more than 5 months after the proposal notice had been issued—in addition to raising serious due process concerns—strongly suggests that: (1) it did not consider the appellant to have engaged in serious misconduct; and (2) the charges were a pretext for reprisal.”  Christopher L. Elder, v. Department of the Air Force,  2016 MSPB 41 (November 22, 2016)