Imagine a team of agency IT people spent years and over $1,000,000. developing software to solve a big agency problem no private vender could and that it worked like a charm. But one day someone in management noticed that it made a serious mistake once on one of the many tasks it was written to handle.  Would the proper top management response be (a) to pull the software, destroy it as a lost cause, and write off the million dollars invested in it or (b) to shut down the software’s work in one area and continue to benefit from everything else it can do?

Of course the answer is (b).  Anything else would be incredibly wasteful of a federal resource and strip the agency of the many benefits the software provided that no one else could. So why is it so hard for the MSPB, the Federal Circuit, a chunk of the civil service pundits, and even top union, leaders to see that human resources should be given the same treatment that capitol and other hard resources are?

We ran across a case recently that not only gives us hope that some agency managers see the wastefulness of terminating employees, but that also gives all of us a good case to stick in front of an agency deciding official the next time an agency ignores progressive discipline in favor of immediate execution. But perhaps most important is that it puts to shame the top union leaders who insist on terminating their non-unit staffers rather than use progressive discipline and remember the value of a union asset. (The case is Ditch v. FDIC, DE-0752-15-0022-I-1 (Feb, 28, 2023)).

On April 11, 2014, the agency proposed to remove a Supervisory Examiner, based on the charge of conduct unbecoming a supervisor  and lack of candor. After reviewing the record, including the appellant’s written and oral replies, the deciding official sustained the following charges:

(1) the supervisor had sex with a subordinate female employee, off duty, on two occasions;

(2) the supervisor, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours;

(3) while at the bar, the supervisor insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p***y”;

(4) the supervisor and the female subordinate employee kissed while at the bar;

(5) the supervisor certified the subordinate female employee’s timesheet as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar;

(6) despite the subordinate employee having advised her supervisor  that she was interested in only a professional relationship, the supervisor expressed his continued romantic feelings to her, and, the next day, sent her a text message saying that he still had feelings for her and stating that he was going to find a way to reassign her;

(7) the supervisor instructed the subordinate employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him; and

(8) the supervisor, during duty hours, told another subordinate employee of his romantic feelings for the female subordinate employee and that he had slept with her.

Based on the sustained misconduct, the deciding official mitigated the penalty to a demotion to a grade 12 nonsupervisory Risk Examiner position and a reassignment from the Denver, Colorado Field Office to the Tulsa, Oklahoma Field Office. That decision was based on the deciding official’s consideration that the supervisor had no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, the deciding official believed that he had the ability to contribute value to the agency.  In other words, the deciding official recognized the asset the employee was to the agency and believed that something less than termination would give the agency a chance to retain that asset. That is something all top managers should consider when they have to make a decision between totally wasting  a top staffer the agency or union has developed and rehabilitating it.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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