WHEN HR DISRESPECTS DECIDING OFFICIALS
Sitting as the deciding official over a proposed adverse action is a big deal. Not only does the DO have to respect employee Constitutional rights, but also the requirements of law, regulation, agency policy, past practice, and collective bargaining. It is not an easy job and as a result some deciding officials sleep walk through the process only doing what the HR Specialist tells them to do. That can be a very costly mistake for the agency when the employee’s representative catches them doing that—as one MSPB case made clear.
In Chavez v. SBA, 2014 MSPB 37, the agency proposed to remove an employee because he used his agency computer to views sexually-oriented material. In his reply the employee alleged that he was being treated more harshly than the other employees wrapped up in the investigation who were only being suspended at most. Consequently, the deciding official asked the HR specialist about the circumstances of the other employees who were charged with misconduct as part of the same investigation that led to the appellant’s proposed removal. HR responded by telling the deciding official that “there are eight employee [sic] who will receive a proposal to suspend based upon their improper use of the government computer. Our office, in connection with the proposing official, did not find that the misconduct rose to the level of removal[,]” and that “it was decided to not provide you with our internal report of the specifics of the other cases[,] … [t]he key item of clarification is that the explicit content of the other suspension cases does not rise to the level” of the cases before the deciding official who reviewed the appellant’s proposed removal. HR further explained that “[t]here are a remaining 22 employees involved who will receive (or have received) a letter of reprimand or verbal warning for their behavior. None of these employees forwarded explicit material.” In other words, HR decided that what was best for the DO and the DO, trusting them, went along.
At the MSPB hearing, the employee’s representative asked the deciding official whether he ever examined the cases of the other employees as the terminated employee asked. The DO responded that he never received information about any of the other cases except for the three proposed removals in which he was the designated deciding official. That admission raised the legal question of whether the agency violated the Douglas factors by failing to provide the deciding official with the information he had requested about the other employees and what discipline, if any, had been imposed.
The MSPB ruled that the agency’s withholding of requested information about allegedly similarly situated employees from the deciding official did contravene Douglas. It wrote, “A deciding official must be in an informed position in order to make a conscientious penalty determination under the facts of the case before him.…Under Douglas, it is insufficient for another agency employee to predetermine for the deciding official which instances of misconduct he should consider….This is particularly true in this case where the deciding official was denied comparator information about employees whose misconduct was discovered during the same investigation that led to the appellant’s disciplinary action.”
Who knows why the HR folks denied the DO this information. Perhaps they did not want to do the work to assemble all that material for the DO, or decided that they were in a better position to make that determination, or even that the employee was only trying to delay his proposed removal by forcing the DO to do some considerable work before firing him. None of them are proper grounds for HR to deny the DO the material. About the only legitimate reason we can think of that might have motivated HR is that they were worried the Deciding Official would start considering facts and factors beyond those listed in the proposed adverse action letter as grounds for the termination decisions. That is something HR should worry about and union reps should scour the evidence file to find proof he did because it can lead to a total reversal of the removal or mitigation to a lesser penalty. However, there is one solid exception to considering evidence that was not relied upon as part of selecting the proposed action. Where the employee specifically raises the issue of the consistency of the penalty with the deciding official—or any other defense requiring further inquiry, the DO is permitted to examine that material. Here the Board said, “We find that the agency prevented the deciding official from undertaking a conscientious consideration of the consistency of the penalty by withholding the information he requested.” The Board reinstated the employee with some back pay.