As one of the largest employers in the United States, the federal government’s procedures and policies with regard to employment differ from their private sector counterparts. One of those differences exists within the process of removing or terminating a federal employee. Obviously, this is a very important process for federal employees to understand in the event they find themselves in a situation where they are facing proposed disciplinary action from their agency.
The following serves as a general overview for employees responding to a proposed disciplinary action from their agency, along with some best practices on how best to respond to an agency in these situations. While there are many more details and nuances in this process, if you are facing a similar situation, it is advisable to speak with an experienced federal employment law attorney, as cases can vary depending on the individual background circumstances.
Types of Disciplinary Actions
There are many different types of disciplinary actions that can be taken against federal employees, and which action is taken can depend on a variety of different factors, including the reasoning for the proposed discipline, the nature of the misconduct or performance issue, and your disciplinary history, amongst others. Some examples of proposed disciplinary actions might include:
- Letter of Reprimand: A letter of notice regarding misconduct or poor performance that remains in your personnel file.
- Suspension: You will remain employed but are prohibited from working for a set amount of time and are denied pay.
- Demotion: You are placed in a role at a lower grade and with less pay.
- Removal: You are terminated from the agency where you are employed.
Receiving a Notice of Proposed Discipline
Your agency may issue a reprimand or letter of counseling without giving you advance notice. However, when your agency is proposing a suspension, demotion, or removal, they must issue a written notice and provide an opportunity to respond. More specifically, they must issue a written notice of the proposed disciplinary actions informing you of:
- The charges against you;
- The facts supporting the charges against you;
- The opportunity to respond in writing and/or orally within a set amount of time, and
- The fact that you have the right to review the material or evidence the agency is relying upon in proposing this action against you.
It is important to note that your agency cannot impose a penalty more severe than the one it has already proposed or based on conduct not already contained in the proposed notice of discipline you have received. However, an agency can rescind its proposed action at any time and reissue a different proposed disciplinary action that may be more severe than the first.
Responding to a Proposed Disciplinary Action
If you do receive a notice of proposed discipline, you should first consider asking for both the evidence file if it has not already been provided, as well as a potential time extension to respond if needed. This is done through an interim reply, which should typically include the following requests to the agency:
- A request for information, including copies of materials relied upon by the agency;
- A request for extension— usually 15 calendar days upon receipt of the request documents;
- Your desire to exercise your right to present an oral reply, and
- A notice to put the agency on a document hold for purposes of document data preservation.
These letters should be served to the agency’s deciding official, with a CC to the designated HR official, within 3 business days of the receipt of the proposed disciplinary action.
Next, you should consider what to include in your written reply. While there is no standard template for these replies, the following serves as a good outline of the areas of topics to address:
- Your employment background
- Charges and specifications
- Your argument
- Penalty/Mitigating Factors
- Affirmative defenses
You should address each of the charges against you, explaining why the allegations are not true or why they do not constitute either misconduct or poor performance under the law. While mitigating factors addressed in each response will be different, for cases involving Chapter 75 performance-based reasons, you might include or address the Douglas Factors to help refute the agency’s claims. Remember, it is the agency’s burden to prove their charges. You can also submit other information to help support the mitigating circumstances, including things like medical records or statements from coworkers or witnesses.
Regardless of how you choose to structure your written reply, it is important to consider speaking with an attorney when formatting these replies since this document will be referred to by the deciding official when they are making their decision, should they have any further questions, making it all the more important for them to be clear and comprehensive.
You should always express your desire to present an oral reply as part of your response to a proposed disciplinary action. The oral reply is a very important procedural right afforded to employees, and the goal of the oral reply is to humanize the case for the agency’s deciding official and tell your side of the story. It is important to keep in mind your words, tone, and overall demeanor, as these can help the deciding official understand the situation from your perspective.
Your oral response should highlight key arguments to the deciding official on why the action isn’t warranted. Similar to the written reply, you can also have an attorney represent you at this stage as well, which is advisable since an attorney can explain any harmful procedural errors and affirmative defenses.
While no federal employee ever plans to have any sort of disciplinary action taken against them, knowing the basics of your rights along with what strict timelines are in place can help keep both your case and career intact while you respond. If you or someone you know is currently in this situation, consider consulting with an experienced federal employment law attorney. They can help review the notice of proposed discipline and evidence against you, along with advising you on how best to respond and prepare an oral reply.
Our team of attorneys has experience helping federal employees with their cases of proposed discipline and is ready to assist you today.