Fedweek Legal

So, you’ve been threatened with disciplinary action. Now what? The first thing is do not panic. In all but the least severe form of discipline (such as a reprimand or letter of warning), there are various procedural safeguards to guard against arbitrary, unfair and improper action. Generally, management must first start out by issuing a “proposal.” The proposal should specify what misconduct you allegedly committed and provide the facts to support the allegation. You can only be disciplined for the misconduct alleged in the proposal. Also, management must specify what discipline is being proposed. Management cannot impose a discipline harsher than what it proposed.

Gathering Information

You are entitled to review the evidence management relied upon in proposing the discipline. Take advantage of this right. In addition, there is other information you should try to obtain to assist your defense. For example, ask for copies of any agency rules you allegedly violated; disciplinary instructions to managers; the agency’s “table of penalties” for offenses; your complete Official Personnel File (OPF); and copies of disciplinary actions issued to other employees charged with similar offenses. (Note: you will have to ask to have the names deleted to avoid Privacy Act problems).

Making a Reply

Take advantage of the right to present both an oral and written reply. Be specific in addressing the charges against you. You may obtain and present witness statements and affidavits supporting your version of the facts or your credibility. If you are guilty of some misconduct, consider admitting the misconduct, but explain any mitigating circumstances that minimize the seriousness of the conduct. After discussing the charges against you, discuss the specific penalty proposed. Your goal here is to show that the penalty proposed is too harsh under the circumstances of your case. The mitigation factors to discuss are commonly called “Douglas” factors, taken from a famous MSPB case. Some more useful Douglas factors to discuss are: the seriousness of the offense; your lack of past disciplinary record; your past work record: length of service, job performance, dependability; the consistency of the penalty with those imposed on similarly situated employees; the consistency of the penalty with the agency’s table of penalties; the lack of notoriety of the offense; the clarity with which you were on notice of rules allegedly violated; and any mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice of on the part of the supervisor. If you did do something wrong, show remorse and ask for another chance with a promise to abide by agency rules. If, despite your reply, the agency imposes disciplinary action, that is not the end of the matter. There may be various appeal routes open to you. In a future edition of the Federal Legal Corner we will discuss how and where to appeal disciplinary actions.

(By the attorneys of Passman & Kaplan, a law firm specializing in federal civil service law, including sexual harassment, discrimination, security clearances, grievances, unfair labor practices, wrongful discharge, employment contracts and employee benefits. For more information about Passman & Kaplan, visit http://www.passmanandkaplan.com.)