Ask FELTG: Can an incident of misconduct that occurred prior to a suspension, that was not addressed in that suspension, be used for a current disciplinary action?

July 15, 2025

Here’s a bit more detail on the question. Hypothetically, an employee was tardy on May 1, 2025. The employee was suspended on May 5-10, 2025, for an unrelated offense of inappropriate conduct and the suspension failed to address the May 1, 2025 incident of tardiness. Can the agency then discipline the employee on May 15, 2025, for tardiness that occurred on May 1, 2025? Or would the employee have to be tardy again after the suspension from May 5-10, 2025, in order for the agency to take action?

And our FELTG response:

Thanks for the question. The agency can absolutely discipline the employee on May 15, for the May 1 tardy incident, but it cannot rely on the May 5-10 suspension as an aggravating factor in determining the appropriate penalty for the May 1 incident.

Why, you might ask?

An underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Fowler v. USPS, 77 M.S.P.R. 8, 14 (1997). Because the May 1 misconduct occurred before the May 5-10 suspension, the employee had not yet been given the chance to earn the corrective benefit of that suspension when he was tardy. See also Castellanos v. Army, 62 M.S.P.R. 315, 324-25 (1994).

But that doesn’t mean the agency should ignore the employee’s May 1 tardiness; it has a couple of options:

  1. Propose/issue an appropriate level of discipline based on the circumstances of the tardiness but do not rely on the May 5-10 suspension as past discipline; or
  2. Rescind the May 5-10 suspension, pay the employee back for those days, and re-propose discipline with an additional charge of tardy added to the charge of inappropriate conduct. Because there are two charges instead of one, the penalty proposed would most likely be higher than the 6-day suspension for inappropriate conduct – unless the tardiness was very minor.

We’ll be discussing this very topic, as well as other hazards to avoid when disciplining employees, in several upcoming training classes so please join us if you can. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.