When an Agency charges an employee with failure to follow instructions, they are required to prove certain facts:
An instruction or order was issued;
The Agency was entitled to have the instruction followed; and,
The employee did not follow the instruction.
It is important that the instruction to the employee be clear – enough to put the employee on notice that some action or inaction is required of them. For this reason, when the instruction is issued in writing (memo, letter, e-mail, handbook, etc.), the first element is rarely disputed. In situations where the instruction was issued orally, then proof of these facts is usually going to turn on the credibility of two witnesses: the person who claimed to issue the instruction and the person claiming not to have been instructed.
The second element is somewhat vague – a Federal Agency is entitled to have all proper instructions followed. What, then is a proper instruction? Generally, the Agency is entitled to have all instructions followed, unless following the instruction would place the employee in imminent danger or cause irreparable harm. These exceptions are few and far between – and the safest course of action for a Federal employee is to follow the instruction and grieve it later.
The third element is a fact-intensive examination. Many times, the Appellant or the employee feels that they have followed the instruction, or did their best to comply with the instruction. Sometimes, employees will argue that although they did not follow the instruction perfectly, they did not intend to do something wrong. This is an important distinction – the charge of “failure to follow instructions” does not require any proof that the employee intended to disobey or intentionally failed to follow the instruction. (By contrast, the charge of insubordination requires the Agency to prove that the employee acted with intent – willfully refusing to follow the instruction at issue). However, when an employee admits that they didn’t follow an instruction, but did not do so intentionally, the Board may consider this fact in determining whether or not to mitigate the penalty under the Douglas Factors.
[Practice Tip: Oftentimes, you can produce facts to help you by asking the Deciding Official (or Proposing Official in discovery or at hearing) why, if your misconduct was so severe, they didn’t charge you with insubordination. Rarely will a Deciding Official be able to satisfactorily answer this question, giving you an argument at closing that the misconduct was not as severe as the Agency wants the Judge to think.]
Sometimes, an Agency will charge an employee with a mixed-charge of “Insubordination/Failure to Follow Instructions”. When it does so, the Agency is generally going to be required to prove the heightened charge of insubordination. However, a lot will turn on the language in the specification for the specific charge.When you are charged with the misconduct of Failure to Follow Instructions, it can be very helpful to have an attorney review the proposal letter. Many Agencies are not careful in drafting their charges, and often include language that requires a heightened burden of proof.
If you would like to consult with an MSPB attorney regarding your charge of failure to follow instructions, please contact the Law Offices of Eric L. Pines, PLLC today.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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