FEDweek

Federal Legal Corner: Even If You’re Not Harmed, It Could Hurt

In Gilmore v. U.S. Postal Service, Docket No. AT-0752-05-0325-I-1 (September 5, 2006), the Merit Systems Protection Board overruled an administrative judge and found that there was no harmful procedural error in the agency’s execution of an adverse action against an employee, even though the agency failed to follow established procedures for such an adverse action.

The concept of procedural due process prohibits a person from being stripped of such things as their freedom and their land without a fair opportunity to know of the potential deprivation and fair opportunity to respond to such potential deprivation. Procedural due process used to also mean that a person could not be subjected to adverse action without the employer adhering to certain procedural steps.

Through the Civil Service Reform Act of 1978, as amended, Congress has implemented the concept of “harmful procedural error,” which requires any employee to show that he or she was harmed by the agency’s failure to follow established procedures in taking an adverse action. The effect of the Reform Act has been that the Board is loath to overturn an agency decision to take adverse action on the basis of the agency failing to following established procedural processes. In short, it is easier for an agency to do such things as fire or suspend an employee without providing that employee any meaningful opportunity to know or respond to the charges.

In Gilmore, the Board reaffirmed its commitment to deferring to the agency. The appellant was a USPS employee who received notice of a proposed demotion for unsatisfactory performance. The agency erred in providing a fair and adequate process, but the Board still sided with the agency on appeal.

First, the proposal notice contained charges that were not particularly detailed. The employee did not respond to the lack of specificity prior to the hearing. The Board found that the employee was provided adequate notice of the specific reasons for the proposed demotion.

Second, the agency failed to provide the employee the minimum number of days required to respond. Prior to the employee submitting a response to the notice of proposed demotion and prior to the deadline for the employee to do so, the agency issued a notice of actual demotion. The Board determined that the agency’s failure to follow established procedure was not likely “to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.”

Third, the agency failed to provide the employee with copies of the documents on which it relied on in deciding to propose demotion and failed to inform the employee that she had a right to such copies. A supervisor informed employee that the documents would be made available to the employee, but the employee did not receive them and did not follow up. The Board relied on the employee’s failure to follow up in finding that the agency’s procedural error was not harmful.

Finally, the agency’s notices to the employee informed her that she could reply either orally or in writing, instead of informing her of her right to reply by both methods. The Board decided that the agency’s procedural error was not harmful because the employee did not indicate that she would have submitted both oral and written responses if she knew that was permitted.

There is at least one powerful recommendation that federal employees can follow: Be the first line of defense in protecting your rights. Do not give tacit approval to the agency’s failures to follow the rules. Failing to be vigilant about your workplace rights may result in someone choosing to believe that you have not been harmed by the agency – and that could hurt.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h. http://www.fedweek.com/legal.htm