Q. Can an agency punish an employee for doing something not specifically prohibited by a written rule?
Updated On: Feb 03, 2016

A. It is not necessary for agency policies to specifically prohibit a certain type of misconduct for an employee to be disciplined for engaging in it. For example, the U.S. Court of Appeals for the Federal Circuit has upheld disciplinary actions against an employee who wrote a letter in which he made derogatory statements about Catholics and Hispanics and another who refused to use standardized office worksheets, even though there were no written rules prohibiting such conduct, the court noted in David. L. Boyer v. Department of the Navy (1995). 


 As a matter of proper due process, agencies should notify federal employees that certain behavior could result in disciplinary action. One exception to this rule is a situation where employees "should know [the conduct] is improper because of professional or similar standards that provide guidance in a particular occupation," the Merit Systems Protection Board (MSPB) noted in Betsy Faden v. Department of Veterans Affairs (2014).  


 In Faden, the agency suspended the appellant, a recreational therapist, who engaged in several types of misconduct, including taking a bite out of a patient's sandwich. The appellant claimed this charge violated her due process rights because there was no written rule against such conduct. However, the Board found the appellant's conduct did violate the agency's infection control policy.


As the Board noted, this policy's purpose "is to prevent the passage of germs or infection, and that, by taking a bite of the patient's sandwich, the appellant could have gotten her own saliva on the sandwich." In sum, the appellant "knew or should have known that taking a bite of a patient's sandwich would be considered actionable misconduct." When an agency levels a charge that is not mentioned in any written policy, there is the possibility that policy could be overly broad.


That was what the appellant in Boyer, a contract specialist, had argued after being charged with "inappropriate conduct for a Federal manager and supervisor." This charge stemmed from the graphic sexual comments and jokes the appellant made in front of subordinates.


He claimed this charge "covers everything and touches nothing." The Federal Circuit noted this charge is not mentioned in agency guidelines or employee literature, but it added that "any person in a supervisory or managerial position in an agency would understand that the cited instances of sexual 'joking' are inappropriate conduct for a supervisor and would warrant disciplinary action." 


 Protect your due process rights. Consult with a Steward if your agency has proposed taking an adverse action against you.  

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