In Pedeleose v. Dept. of Defense and OPM, 2009 MSPB 16 (February 12, 2009), (Pedeleose II), the Merit Systems Protection Board reversed it holding in Pedeleose v. Dept. of Defense, 107 MSPR 191 (2007), (Pedeleose I), which overturned the appellant’s 30-day suspension for failure to cooperate in an agency investigation, insubordination and failure to follow instructions. In Pedeleose I, the Board expanded the exception to the "obey now, grieve later" rule to increase the situations in which employees may refuse to comply with supervisory instructions without fear of discipline. In Pedeleose II, the Board now holds that the expansion of the rule was unwarranted. The rule was rolled back, and Pedeleose’s suspension affirmed.

In this case, Pedeleose had reported certain allegations of wrong-doing to the agency’s inspector general. It was widely known that Pedeleose was providing this information to the IG’s office. One allegation Pedeleose presented was that there were rumors that his supervisors had "targeted" certain employees for removal because those employees had raised certain safety issues regarding Department of Defense aircraft. Pedeleose’s supervisors also conducted an investigation into some of the same allegations, and in particular, sought to question Pedeleose about his knowledge of the source of the rumors about the "targeting" of employees. Pedeleose refused to participate in the investigation on the grounds that he had already provided the requested information to the IG. Further, the IG declined to answer Pedeleose’s question about whether it was legal for the agency to conduct its own inquiry in the same matter being investigated by the IG. Pedeleose had doubts about the lawfulness of the agency’s investigation and also believed that the agency’s investigation could compromise the IG’s investigation. His refusal to participate in the agency’s investigation resulted in a 30-day suspension.

In Pedeleose I, the Board reversed the suspension. While noting the general "obey now, grieve later" rule, which requires employees to follow supervisor instructions and to challenge any improprieties after-the-fact, with limited exceptions where complying would place the employee in a dangerous position or would cause irreparable harm, the Board’s majority (Chairman McPhie dissenting), expanded the rule. The majority held that in determining whether an employee could be disciplined for failure to obey a supervisor instruction, the Board should consider the need to avoid harm to the agency and its mission, and the fact that the employee may be mistaken in his belief that the instruction was improper. In Pedeleose I, the Board majority found that the agency’s investigation involved only rumor spreading, not serious misconduct, and that the agency was responsible for not telling Pedeleose that it had, in fact, coordinated its investigation with the IG’s office. Therefore, the majority held that, in the facts of that case, an exception to the "obey now, grieve later" rule applied.

In Pedeleose II, acting on a petition for review filed by the Office of Personnel Management, the Board reversed the relaxing of the rule. In discussing the Pedeleose I decision to create an exception to the rule taking into account the factors of harm to the agency and that the possibility that the employee was wrong, the Board in Pedeleose II found that the majority in Pedeleose I did not rely on any precedent in its case law for the new approach to the "obey now, grieve later" rule. The Board now holds that there is no requirement for an agency to show harm from an employee’s failure to follow a supervisory direction. Moreover, specifically in this case, the Board also found that the IG specifically advised Pedeleose to cooperate in the agency’s investigation. Therefore, the Board now finds that Pedeleose must have been aware that the IG himself took no action to keep the agency from questioning Pedeleose. The Board reverses the rule in Pedeleose I and holds that the exception in that case would swallow the rule. Because the Board found that the purpose of the agency investigation was legitimate on its face, Pedeleose was required to cooperate in the investigation while raising his objections through appropriate channels.

Employees are well advised that the failure to follow supervisory directives, or to participate in an agency investigation, runs the risk of a disciplinary action, including termination. The right to refuse supervisory instruction is limited, and rare. If employees have any reasonable doubts as to the legitimacy of a supervisory instruction, seek the advice of a competent union representative or employment attorney before refusing the directive. When in doubt: "obey now, grieve later."

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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