By John V. Berry, Esq., www.berrylegal.com
We often represent and defend federal employees in proposed disciplinary actions. When a federal employee is facing proposed discipline it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation. This article outlines some key points for federal employees as they respond to proposed disciplinary actions. We have also drafted a Sample Proposed Action, a hypothetical proposed removal, so that federal employees can better understand how a disciplinary action starts.
Types of Proposed Discipline
Most proposed disciplinary or adverse actions generally fall into 3 general categories for federal employees: (1) proposed suspension actions based on misconduct; (2) proposed removal actions based on misconduct; and (3) proposed removal actions based on performance deficiencies (i.e. the failure of a PIP). There are other types of disciplinary actions, but these generally constitute the majority of the types of proposed disciplinary actions that a federal employee might face.
The Proposed Disciplinary Action
When a federal employee receives a proposed disciplinary action (suspension of 14 days or less covered under 5 C.F.R. § 752.203) or an adverse action (suspension of over 14 days to removal covered under 5 C.F.R. § 752.404), they should read over the document carefully. Each federal agency sets their own particular deadlines for submitting a response and these deadlines are generally strict. Generally, each proposal for discipline will list the time limits for requesting the evidence file, requesting an oral response and for submitting a written response. Some agencies may include other additional deadlines as well. It is important to pay close attention to each deadline as an employee can lose the right to contest a proposed disciplinary action if they allow a time period to expire without taking action.
A federal employee can also request an extension to respond, if necessary. Along with a copy of the proposed discipline, when it is issued, the federal agency may provide an employee a copy of the materials in the evidence file (documents, reports, emails, recordings, video, photographs, etc), that they are relying upon in proposing the action (often referred to as the “information relied upon.”). Many federal agencies, however, will not provide the materials along with the action to the employee, but will indicate in the proposed action that they can be requested or reviewed within a certain number of days. It is critical for a federal employee to request these materials.
Responding to the Proposed Disciplinary Action
It is also important for a federal employee to not only submit a written response, along with documentation (affidavits or other evidence) refuting the charges and specifications, but also to request an oral response. It is much easier for the decisionmaker, referred to as the Deciding Official, to make an adverse decision if they are just reviewing a paper submission. Requesting an oral response adds an important personal aspect to the response. While this may be uncomfortable, it is important to request an oral response. The written response should address all of the allegations raised in the proposed discipline, in addition to providing records of the employee’s good performance record, and other positive attributes for use in potential mitigation of any penalty.
It is important to both rebut or respond to the allegations in addition to making arguments under the Douglas factors for purposes of mitigation of the penalty (e.g. reducing a proposed removal to a suspension). In addition, the oral response portion of the response should be straightforward and to the point. An oral response generally lasts anywhere between 30 minutes to an hour and a half depending on the nature and number of allegations made. A federal employee should generally not repeat or read from their written response, but rather highlight key arguments to the Deciding Official as to why the action is not warranted and to focus on potential mitigation arguments. In addition, some Deciding Officials (roughly half of them) like to ask questions about the allegations in the proposed discipline to the federal employee. If the federal employee is prepared to respond (i.e. prepared by their attorney), I often recommend answering these questions because it can help to potentially mitigate discipline when done so appropriately.
It is also helpful for the federal employee to present their response in a manner that is not defensive. When we represent federal employees during the oral response stage, we generally lead the federal employee through the oral response, outlining their legal defenses at the beginning of the response and then focusing the employee on the key factual allegations as we respond to the charges and specifications. Having counsel at the oral response is extremely important for a number of reasons. It enables a federal employee to have a strong voice prior to a decision being carried out. Generally, in our experience, when a federal employee is not represented, Deciding Officials seem to take such responses less seriously.
Following the response stage, the Deciding Official will eventually issue a decision on the propose discipline. The time period to receive a final decision varies significantly, usually anywhere from 1 week to 12 weeks. The average wait time for most federal employees seems to be about 4 weeks. Usually, when the decision on the proposed discipline has been made the federal employee is called into the Deciding Official’s office and given a copy of the decision, along with a description of any appeal rights in the decision. It is important to consult with an attorney because it can often be the case that the federal agency does not list all of the available appeal rights available. Depending on the severity of the discipline issued by the Deciding Official, along with the underlying basis for it, a federal employee may have one of more avenues to appeal. Some federal employees may be able to take a disciplinary action on appeal to the Merit Systems Protection Board (MSPB), through the grievance/arbitration procedure, through the Equal Employment Opportunity (EEO) process, or perhaps file a whistleblower defense. Our law firm represents federal employees before the MSPB and in other venues. There are additional avenues for appeal beyond these. However, it is important to consult with legal counsel as early as possible because it is often the case that when an employee elects one type of appeal, then he or she may not be able to pursue another type later.
When a federal employee is facing proposed discipline it is important to obtain legal advice and representation of counsel. Our law firm advises and represents federal employees throughout the country. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.