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If an employee became angry and threw a soda can in your direction, should you fire her?

Maybe, but as her manager, you couldn't just can her without first considering mitigating factors and the particular circumstances of the incident. That's the rule under Merit Systems Protection Board case law.

A Postal Service manager learned that rule the hard way. He fired an employee for throwing a soda can toward him, arguing that the service's zero-tolerance policy against workplace violence required him to do so. But the board, which protects federal employees from improper managerial actions, ruled against him and reduced the punishment to a suspension.

In ruling against the manager, the board pointed to the so-called Douglas factors, 12 criteria that federal managers are supposed to consider before selecting an appropriate punishment for an employee (those factors, named after the case Douglas v. Veterans Administration, 5 MSPR 280 (1981), include the seriousness of the offense, past disciplinary record, consistency with previous penalties and rehabilitation potential). In the soda can case, the employee who threw it wasn't aiming for her boss, had a clean disciplinary record and acknowledged her misconduct (Omites v. U.S. Postal Service, 87 MSPR 223 (2000)), so the board decided termination was unreasonable.

Every federal manager should know the Douglas factors and the numerous other rules and procedures that the Merit Systems Protection Board considers when either upholding or reversing a manager's action against an employee.

Now there's a step-by-step handbook that teaches federal supervisors and managers what they need to know.

Winning at the Merit Systems Protection Board (Dewey Publications, 2002) is a 900-page reference tome by Harold J. Ashner, a federal personnel expert who draws on years of experience dealing with manager-employee disputes at the Merit Systems Protection Board, the Office of Personnel Management and other federal agencies.

Ashner's three-part book starts with an introduction about the board and ends with a section on how to present a case. Both are useful, the first section offering insights into whistleblower allegations, for example, and the third part suggesting tips on testifying before the board. But the meat of the book, from a manager's perspective, is the middle section on building a winning case, which describes the steps managers need to take in the workplace to ensure that the board will subsequently uphold any actions they take.

"Most MSPB appeals are won or lost long before the appeal is filed, often by the time the action is proposed," Ashner explains. "Nothing is more important than having all the facts when you are deciding whether to take action and, if so, what action to take."

In addition to the Douglas factors, readers learn about such issues as:

• Employees' constitutional rights, such as when they have the right to remain silent (answer: only when they have a reasonable belief that any statement could lead to criminal prosecution) and when they are protected from unlawful search and seizure (searches must meet the reasonableness requirements of the Fourth Amendment).

• The need for early and specific documentation of employees' actions. "There is no excuse for waiting until an action is formally proposed, or, worse yet, until an appeal is filed, to develop documentation that should have been developed at an earlier stage," Ashner warns.

• How to draft charges that will stand up to review. For example, managers can deny annual leave for some reasons, but managers cannot deny annual leave because they disapprove of the reason for the leave. In fact, in at least two cases the board has said that employees can take annual leave to spend time in jail (See Benally v. Department of Interior, 71 MSPR 537, 541 (1996)).

• The proper ways to inform employees of adverse actions. Managers must provide specific explanations so that employees can defend themselves. In one case, the board reversed an employee's firing because the manager's notice to the employee didn't specify when and where the employee made racial slurs and told sexual jokes in the workplace. The notice only described what the employee said. (See Mason v. Department of Navy, 70 MSPR 584, 588 (1996)).

Winning at the Merit Systems Protection Board is a follow-up to Ashner's 1997 book, Representing the Agency Before MSPB. That book was aimed primarily at agency lawyers and personnel officers. The new book targets those groups too, but offers more in-depth information for managers and supervisors than the previous book did.

Given the widely held perception, whether right or wrong, that federal managers don't take actions against poor performers because of the threat of a lengthy appeals process, Ashner's new book at least provides managers with the know-how to handle disciplinary actions properly - and avoid taking an action only to find it reversed six months later.

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