Failure to Follow Instruction and Successful Litigation before the MSPB

"Failure to follow instruction" is a basis for discipline cited by Federal Agencies with increasing frequency when proposing disciplinary action against a Federal employee. One reason for this may be that the Agency feels it is easy to sustain a charge of failure to follow instruction. In its simplest terms, failure to follow instruction means a superior issued an order or instruction and that the employee receiving this instruction failed to obey it. Before you waive your right to oppose or appeal a failure to follow instruction charge there are few things every Federal employee should consider.

As one might expect employees are expected to follow the instructions of their superiors, even if those instructions are improper. After following the supervisor's instruction a Federal employee may then use the appropriate channels to challenge its validity. The rationale for this rule is that an employee's failure to obey a superior undermines the employee/employer relationship which is essential to maintain order in the workplace. A refusal to comply with an order or instruction based solely on a belief that it is improper may cause a Federal employee more harm than good.

There are a variety of ways to establish the impropriety of an instruction given by your supervisor. First and foremost, the federal employee can prove that instruction was invalid simply by establishing that the person giving the instruction lacked the authority to do so. Second, there is ample case law that has been developed through litigation before the Merit System Protection Board (MSPB) which supports a de facto conclusion of impropriety for any and all instructions that place federal employees in immediate danger, cause irreparable harm, or would otherwise require an employee to violate laws, policies, or procedures. Federal employees should keep in mind, however, that these exceptions are subject to interpretation and mitigation of an adverse action, like a suspension or removal from federal service, and successful MSPB appeals are often factually dependent; requiring artful and strategic argument.

In the event your employing Federal Agency is successful in establishing that there was a valid instruction given by a manager with the appropriate authority, it may behoove you to argue "Misunderstanding." If "misunderstanding" is asserted, an MSPB Judge will review what was, or should reasonably be, expected of the federal employee who was charged with failure to follow instruction. Regardless of whether the instruction was given verbally or in writing, the federal employee may reasonably assert that the instruction was ambiguous or that they did not understand what was required of them. Challenging the validity of an order or instruction based on misunderstanding frequently becomes a credibility determination. Credibility determinations fall squarely under the purview of the MSPB Judge assigned to your appeal. If a federal employee is successful in establishing that instruction was not clearly issued, the MSPB Judge hearing your appeal may reverse or mitigate the penalty imposed.

Penalty mitigation should always be explored in the context of any MSPB appeal. A request for mitigation of penalty essentially asks the MSPB Judge to reduce the penalty given by the Agency because of some factor that requires a certain degree of equitable relief in the form of a reduced penalty. For example, if a federal employee is able to prove that a sincere effort was made to follow the instruction given, the penalty should be mitigated. A typical situation is where an instruction is given with no clear deadline, and the employee is subsequently suspended for failing to follow an instruction which required completion of the assignment within a certain period of time. It is often beneficial to argue that the assignment was completed and there was no guidance provided concerning the expected date of completion. Other factors that may be asserted to mitigate a penalty include a federal employee's physical limitations, such as a medical condition or medically prescribed light duty restrictions; the availability of resources, including personnel, and whether the assigned task was beyond the scope of the employee's position description.

The federal employee's effort to comply with an order or instruction should not be confused with the legal element of "intent." To sustain a charge of failure to follow instruction the Agency is not required to prove intent unless the charge also specifies "insubordination." A charge of insubordination requires that the Agency prove that the disciplined employee intentionally and willfully refused to obey a proper order or instruction. Meaning, the Agency fails to meet the requisite burden of proof in an insubordination claim if the facts born out during litigation establish only that the employee negligently or otherwise unintentionally failed to obey a supervisor's instruction. Correspondingly, the Agency's ability to establish that an employee was negligent or unintentionally failed to act is sufficient to substantiate a charge of failure to follow instruction.

There are several litigation strategies that should be employed during the discovery process of an MSPB appeal in order to successfully defend a charge of failure to follow instruction and it is a better practice to consult an attorney to discuss the options available to you than navigating an MSPB appeal independently. The deadlines associated with MSPB appeals are stringent and failure to timely avail yourself of written discovery and the ability to take oral depositions may preclude you from obtaining the necessary evidence to support your MSPB appeal and accompanying affirmative defenses.

Whether you are charged with failure to follow instructions, insubordination, or both there are several nuances that can be explored to successfully overturn your employing federal agency's employment action. The most cost effective action a federal employee could take is setting up a consult with a federal employee attorney so the best options for obtaining a successful litigation outcome can be discussed before deadlines are missed.