WASHINGTON, D.C. (FEDweek) — The Pentagon has acted to accelerate the firing of civilian employees on performance grounds, meanwhile issuing guidance likely to result in more firings in situations that otherwise might result in a lesser disciplinary action.
A memo from undersecretary for personnel Anthony Tata—dated September 30 but apparently only now being widely circulated—calls on supervisors and HR officials to “act with speed and conviction to facilitate the separation from federal service of employees performing unsuccessfully.” The memo follows several from Secretary Pete Hegseth stressing such actions as part of a “cultural refresh” at DoD (also called Department of War; legislation is pending to formalize the change).
The memo tells components to use a section of personnel law called “Chapter 75”—normally used for taking disciplinary action for alleged misconduct—rather than “Chapter 43” which is normally used for charges of poor performance. That has been an emphasis of the Trump administration since its first term, since the former does not require agencies to offer the employee a chance to improve while the latter does.
The memo sets a series of shortened deadlines for management in taking such actions, for example requiring HR to provide “advice on the sufficiency of the supporting documentation and further assistance, as needed” within 10 days of a supervisor first wanting to initiate discipline. Employees are to have only seven days to respond to a formal notice, and the deciding official is to make a final decision within 30 days.
“Suspensions should not substitute for removal to the extent removal is warranted. Supervisors must consider all past performance deficiencies and past corrective and/or disciplinary actions,” it says.
Use of the Chapter 75 procedures also brings into play the “Douglas Factors,” a set of considerations the MSPB uses during appeals when weighing whether to lessen or reverse a disciplinary action taken under that part of the law. They include factors that may weigh in favor of or against an employee, such as the employee’s past disciplinary record, the employee’s overall work record, alternative penalties, the “potential for rehabilitation” and other “mitigating circumstances.”
The memo includes management-favoring interpretations of those factors such as that:
- “Even small lapses can accumulate to justify removal” if they hinder the department’s efficiency.
- Every position “supports the mission, so deficiencies in any area can merit strong action.”
- Potential harm to the department’s reputation “even within the organization, highlights the urgency of corrective action.”
- The department’s mission “demands consistent performance, so mitigating factors must strongly justify leniency.”
- “Any operational disruption underscores the necessity of removal to maintain a ready workforce.”
“The memo is an attempt to streamline the process to terminate employees from the Department of Defense in a very subjective and amorphous manner wholly deficient of ordinary due process protections generally afforded to our civilian military workforce,” said Sean Timmons of the Tully Rinckey PLLC law firm.
Although the department has set new standards for itself, that does not change a body of precedent from the MSPB and federal courts going back decades regarding how the Douglas Factors are applied.
