.
When an employee challenges an adverse action before a third party,
the single most important issue in determining the outcome is the agency's
ability to prove the facts it gave as a reason for action in the notice
of proposal. Many, many actions are overturned, not because the agency
failed to prove there was a reason for disciplinary action, but rather
because the agency failed to prove the specific reason it gave. If your
actions are to stand, it is critical that you take time for careful, objective
analysis before you ever begin to draft the proposal notice. This
is a systematic approach that may work for you.
1. Evaluate the evidence you have.
What kind of evidence do you have? Some kinds of evidence are given
more weight by third parties than others. What does the evidence prove?
Where are the holes? Do you have the employee's explanation? How would
you attack the evidence if you were the employee's representative? Is there
additional evidence you can readily get that will make a difference? Try
to get to the bottom of any conflicting accounts. Where it's simply one
person's word against another's, evaluate their relative credibility.
2. Develop alternative charges.
Stick to plain language that fits the evidence. As case law now stands,
it is wise to avoid terms with specific meanings in criminal law, like
"assault" or "theft," unless your legal staff are confident they can prove
all the criminal law elements. Try to think of all the plausible approaches
that fit the evidence. For instance, a person who has (allegedly) shot
15 people may be unavailable for duty because he's in jail. As long as
management does not approve leave, AWOL is a very plausible approach that
fits your evidence! If the type of behavior that forms the basis for your
action is specifically discussed in the agency standards of conduct, in
the disciplinary policy, or in a negotiated agreement, you will want to
be aware of the language and policy approach and consider a charge that
cites the policy. However, don't use language from any source if it doesn't
fit your facts.
3. Look at current, relevant case law.
Once you have some optional approaches in mind, consult your references
and look at a few cases with similar fact patterns. Some charges you are
considering may carry specific burdens of proof that have been defined
in case law from the courts or the Board. You need to show that your action
meets those burdens or write a statement of reasons that avoids them. For
instance, if you are considering a charge of "insubordination," review
the case law and your evidence and determine whether you can prove intent.
Could the employee's failure to perform the duties in question have been
negligence rather than willful disobedience? Might the employee be able
to prove mental or emotional problems that explain the failure? If the
duties are important to management, you can show that an action for failure
to perform them promotes the efficiency of the service without taking on
the "intent" burden inherent in the "insubordination" charge. You will,
however, want to be sure you are not attempting to penalize an employee
for performance that actually meets the established performance standards
for the position.
In the example given of the employee who is in jail, using the alleged
criminal activity as your charge will raise some very specific burdens,
and the independent activity of the court system may affect the agency's
ability to meet them. The AWOL charge, on the other hand, raises much lower
burdens if the agency can show it is not applying its attendance policy
to the employee in a disparate way.
4. Refine the charges, in clear language that distinguishes charges
from specifications.
Your letter of proposal should tell the employee clearly what charge
is going to be proved, for instance: "Disorderly conduct." If this statement
contains more than one element, for instance: "Disorderly, threatening
conduct," you must prove each element or your charge will fail.
However, you can provide information that describes the relevant incidents,
explains their impact, or gives any other details you think are relevant
to your reasons for action, without making that information part of the
charge and raising higher burdens of proof for your action. This supporting
information is sometimes called "specifications" in the case law.
Distinguish the specifications from the charge by putting them in a
separate sentence or paragraph with language such as: "The agency bases
this charge on the following information..." The specific incidents, allegations,
etc. that support the charge may then be described in enough detail to
tell the employee what you are talking about and/or why the agency considers
the behavior serious. If a third party finds you have proved some specifications
and not others, the charge as a whole can still be sustained.
It is unwise to use terms associated with specific burdens of proof,
like "threat," "assault," or "hostile environment" in your supporting information,
since an adjudicator may find you have changed the nature of your charge
and raised your burden of proof. It is also unwise to throw in an undifferentiated
profusion of facts and allegations that forces a reader to interpret what
will be proved. If the charge is open to interpretation, the employee's
representative has an opportunity to fashion an interpretation that is
favorable to the employee and unfavorable to the agency. Administrative
judges have also been known to interpret and/or summarize confusing or
inartful reasons for action in ways that affected the agency burden of
proof. If the agency representative feels an administrative judge has mischaracterized
the charge, it is essential that the agency place an objection on the record,
thereby preserving the opportunity to seek review by the full Board of
any adverse decision that may result from the mischaracterization.
U.S. Office of Personnel Management,
Employee Relations Division 1999 |
