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By: By: Mathew Tully, Esq., for Tully Rinckey PLLCAs one of the largest employers in the United States, the federal government’s employment practices and policies differ from those of the private sector. One of those differences can be found in the method used to dismiss or fire a federal employee. It goes without saying that understanding this procedure is crucial for federal employees who might find themselves in a scenario where they are subject to agency-proposed disciplinary action.
The following provides a broad overview for employees responding to disciplinary action from their agency, as well as some best practices for responding to an agency in similar instances. Even though there are many more specific and nuanced aspects to this procedure, it is best to consult with a federal employment law expert if you are in a similar situation because each case is unique and depends on the particulars of the individual’s background.
Types of Disciplinary Action
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. The following are some examples of potential disciplinary actions:
· 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 counseling letter without prior warning. However, if your agency wants to suspend, demote, or remove you, they must provide you with written notice and a chance to react. They must give you a written notice of the proposed disciplinary actions, alerting you of the following:
· 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 remember that your agency cannot impose a penalty that is more severe than the one it has already proposed or that is based on behavior that is not already covered by the proposed notice of discipline you have received. However, an agency may withdraw its proposed action at any moment and reissue a new proposed disciplinary action, which may be more severe than the first.
Responding to a Proposed Disciplinary Action
If you get a notice of proposed discipline, you should first request the evidence file, if it has not already been delivered, as well as a potential time extension to respond, if necessary. 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.
Written Reply
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 be addressed:
· 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 its charges. You can also submit other information to help support the mitigating circumstances, including things like medical records or statements from coworkers or witnesses.
This document will be referred to by the deciding official when they are making their decision, making it all the more important for them to be clear and comprehensive. Regardless of how you choose to structure your written reply, it is important to consider speaking with an attorney when formatting these replies.
Oral Reply
As part of your response to a proposed disciplinary action, you should always express your wish to present an oral reply. The oral reply is a crucial procedural right that is available to employees, and its purpose is to personalize the situation for the agency’s decision-maker and present 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. Like 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 expects to face disciplinary action, understanding your rights and the stringent timelines 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.
Tully Rinckey PLLC has experience assisting federal employees with classification appeals and is ready to help you today. Mathew B. Tully is a founding partner of the firm and concentrates his practice on representing federal government employees and military personnel. To schedule a consultation with one of the firm’s federal employment law attorneys call (888)-529-4543 or email info@tullylegal.com.
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