ADVERSE ACTION DUE PROCESS AND AGGRAVATING FACTORS
Agencies are allowed to consider aggravating factors when choosing adverse action penalties. These could include prior disciplinary actions, poor work record, lack of rehabilitative potential, etc. However, MSPB just reminded us that there are limits union reps can enforce to defend employees.
In Jenkins v. EPA, the employee was charged with threatening to inflict bodily harm and abusive or offensive language. However, when the deciding official consulted the agency table of penalties he relied upon the penalty for a charge of generally criminal, infamous, dishonest, immoral or notoriously disgraceful conduct.
When an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official.
MSPB overturned the removal on the grounds that the agency’s failure to notify the employee denied him an opportunity to respond to that aspect of the agency’s table of penalties. The Board labeled that a violation the appellant’s due process rights. Because a due process violation is not subject to the harmful error test, the employee was automatically entitled to a new, constitutionally correct removal proceeding. It ordered the employee reinstated with back pay until the agency took action correctly.
This is the second significant MSPB decision in 90 days where it overturned a removal for a due process violation. In Seeler v. Interior the employee was removed for failing to complete a training course. When the employee told the deciding official during the official reply process that he was unaware of the requirement the deciding official contacted the employee’s supervisors to verify that he was aware. One of the supervisors reported that the employee was not only aware of the requirement, but had suggested the manager lie to the deciding official about that. The deciding official mentioned in the final decision letter the employee suggestion that the supervisor lie.
The Board overturned the removal stating that, “We find that the deciding official’s consideration of this aggravating factor without the appellant’s knowledge was ‘so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under the circumstances.’. . . Consequently, because the agency violated the appellant’s due process guarantee to notice and a meaningful opportunity to respond, the agency’s error cannot be excused as harmless, and the appellant’s removal must be canceled. . . . The agency may not remove the appellant unless and until he is afforded an ‘entirely new’ and ‘constitutionally correct’ removal proceeding.”
The message from these two cases for the union rep defending an employee is to search the file for any evidence that the management’s decision is based in part on something it has not placed in the notice of proposed action. If possible, engage the oral reply officer in a conversation about what led him/her to propose the action. Finally, if the case goes to arbitration, cross examine the deciding official to identify all the factor as that led to the decision.
Topping off the Board’s recent work on due process is the McGriff v. Navy case where the Board underscored how important it is that the deciding official to whom a reply is delivered have the authority to modify the proposed action.
Providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply. In other words, the agency does not afford an individual with a meaningful opportunity to respond by merely providing an empty process for presenting his defense against the agency’s adverse action. . . . Here, the record suggests that the deciding official lacked authority to change the Command’s initial determination to suspend the appellant’s security clearance or to reassign him. . . . A reply procedure that compromises a deciding official’s authority or objectivity can constitute a constitutional due process violation.