When Prior Punishments Don’t Count

• The nature and seriousness of the offense, and its relation to the employee's duties, position and responsibilities-including whether the offense was intentional or technical or inadvertent, and whether it was committed maliciously or for gain, or was frequently repeated.
• The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public and prominence of the position.
• The employee's past disciplinary record.
• The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers and dependability.
• The effect of the offense upon the employee's ability to perform at a satisfactory level and upon the supervisor's confidence in the employee's ability to perform assigned duties.
• Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
• Consistency of the penalty with the applicable agency table of penalties.
• The notoriety of the offense or its impact on the reputation of the agency.
• The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
• Potential for rehabilitation.
• Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.
• The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

The third factor, prior disciplinary actions against the employee, is perhaps the most clear-cut and least subjective. An employee who has never been disciplined before often can succeed in securing a reduction in penalty-although spies, bribe-takers, hard-core pornographers using government computers and those who assault agency heads will most assuredly go down the drain on the first offense. Conversely, miscreants who have been the subject of previous disciplinary actions will often see their removals sustained in cases of minor misconduct that would net a first offender only a light penalty. A typical example is that of an Air Force employee who was fired for typing 20 pages of her resume on an office computer, an act one would not normally associate with removal. Nonetheless, the MSPB upheld the employee's termination because of prior disciplinary action for unrelated offenses.

The Gregory Decision

Last year, however, a federal court fundamentally changed the rules regarding how agencies can use prior disciplinary actions in punishing employees. The case involved the Postal Service's 1999 firing of letter carrier Maria Gregory for having overestimated the delivery time of her route by about 90 minutes. Gregory had been the subject of prior disciplinary actions. In upholding the firing, the MSPB made clear that removal was reasonable largely because of the prior discipline and even noted that "a removal for one instance for failure to perform duties satisfactorily may appear unreasonable."

Unfortunately for the Postal Service, however, there was a fly in the ointment: At the time of Gregory's removal, at least some of the prior disciplinary actions the agency had used to support the removal were still in the administrative grievance process.

On May 15, 2000, a U.S. Court of Appeals dropped what may turn out to be a nuclear bomb on agency disciplinary actions. Noting that prior actions subsequently reversed cannot support a penalty determination, the court held that "as a matter of law, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits. To conclude otherwise would risk harming the legitimacy of the reasonable penalty analysis, by allowing the use of unreliable evidence (the ongoing prior disciplinary actions) to support an agency action." The Supreme Court has agreed to review the decision, but a decision is not expected until sometime in the term that begins in October. There is no wording in Gregory's case to suggest any limitation on the scope of challenges of prior actions covered by the new rule. The case dealt with prior actions that were still in the administrative grievance process. Clearly, it would apply equally to prior actions still on appeal to the MSPB, the Federal Circuit Court of Appeals and even the U.S. Supreme Court-or those in the negotiated grievance/arbitration process. Worst of all, from an agency standpoint, there is no reason to believe that the Gregory decision would not apply to prior actions wandering around like flying Dutchmen in the endless complaint process-with ensuing

appeals to the Equal Employment Opportunity Commission and/or U.S. District Courts and Circuit Courts of Appeals-in which an employee has raised the affirmative defense of discrimination.

What employees and their representatives will do is crystal clear: Challenge every disciplinary action in the grievance, complaint and appeal process for as long as possible to preclude the agency from using it to enhance the penalty in a future action should the employee mess up again. Although attorneys cannot or at least should not file frivolous challenges merely to keep the Gregory decision in play, the employees themselves run no risk by so doing. Expect, then, to see more grievances, more discrimination cases and more appeals to the MSPB.

Agencies, on the other hand, seem to be trapped between Scylla and Charybdis. If they use pending prior disciplinary actions to support a severe penalty in the case at hand, they will be in the same boat as the Postal Service in the Gregory case, where the court returned the case to the MSPB "to determine whether: (a) the case should be immediately returned to the Postal Service to select a penalty in light of the precise status of Gregory's prior disciplinary record; or (b) the board should retain jurisdiction for the purpose of exercising its own mitigation authority." The alternative is not to consider prior acts in determining penalties and thus lose what has traditionally been the 800-pound gorilla of penalty enhancement: Zapping a three- or four-time loser for what would have been a love-tap penalty had it been the first offense. In any case, it seems a lose-lose situation for agencies.