Receiving the Proposed Disciplinary Action
When a federal employee receives a proposed disciplinary action (a suspension of 14 days or less) or an adverse action (a suspension of over 14 days to removal), they should read over the notice and deadlines carefully. Each federal agency establishes its own deadlines for submitting responses and requesting the information relied upon.
Deadlines listed in proposed disciplinary actions are strict and relatively short. Some federal agencies provide as few as 7 days to respond and others may provide up to 30 days. Along with a copy of the proposed discipline, when it is issued, a federal agency may provide an employee a copy of the materials in the evidence file (documents, reports of investigation, emails, recordings, video, photographs, etc.) that they are relying upon in proposing the action. In other cases, the federal employee or their counsel has to request it. These materials are critical in responding to the proposal.
Response to the Proposed Disciplinary Action
It is important for a federal employee to not only submit a comprehensive written response, along with exhibits (affidavits, character letters, statements or other evidence) refuting the charges but also to request an oral reply before the Deciding Official. Oral replies are critical in most cases because it gives the Deciding Official the opportunity to evaluate the federal employee in person or by video.
The Written Response
A federal employee’s written response to a proposed disciplinary action should address all of the allegations raised in the proposed discipline, in addition to providing records of the employee’s good performance, and any other awards received. Basically, this is the federal employee’s opportunity to refute the allegations. While it is very important to both rebut or respond to the allegations, it is equally important to make arguments under the Douglas factors for the purpose of reducing the possible penalty. It is not uncommon for a written response to be 7-10 pages in length, plus exhibits.
Let’s Discuss the Douglas Factors
The purpose of the Douglas factors (often called mitigating factors) is to show why a federal employee, even if some or all of the charges are true, should receive a less serious penalty than proposed. Douglas factors are used to argue for a reduction in a proposed penalty should the disciplinary action be sustained (e.g., no intent, lack of clarity about rules, good performance, no prior discipline, etc.). Douglas factors come from the case of Douglas vs. VA, 5 MSPR 280 (1981), which established the appropriate way to review a potential penalty in a federal employee disciplinary case. There are 12 Douglas factors that can be argued by a federal employee.
The Oral Reply
In addition to the written response, the oral reply by the federal employee is often critical. An oral reply 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 important arguments to the Deciding Official as to why the proposal is not warranted. The oral reply should also emphasize the applicable Douglas factors. During the oral reply, the Deciding Official usually does not ask questions, but it does happen occasionally. The agency may also have its own attorney present during the oral reply.
The Final Decision
Following the written response and oral reply, a Deciding Official will issue a final decision on the proposed discipline, usually a few weeks after the oral reply. The timeline for issuing a decision varies between agencies and deciding officials. Typically, when a decision on a proposed disciplinary action has been made a federal employee will be contacted to receive it. They will then be given a copy of the decision, along with a list of all appeal rights. The federal employee will also be asked to sign for the decision.
Depending on the facts of a case, a federal employee may have one or more types of appeals available to them if they receive a negative decision. Some federal employees may be able to appeal a disciplinary or adverse action to the Merit Systems Protection Board (MSPB), through the grievance procedure, through the Equal Employment Opportunity (EEO) process, or possibly through the U.S. Office of Special Counsel (OSC) as a whistleblower.
Our law firm defends federal employees in proposed disciplinary cases. If you need legal assistance in this type of case, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.