MSPB Law Blog

By John V. Berry, Esq., www.berrylegal.com 

We defend and represent federal employees in proposed disciplinary actions. When a federal employee is facing a proposed disciplinary action before their agency it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation in the appeal. This summary discusses some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Three Different Types of Proposed Disciplinary Actions

Generally, most proposed disciplinary or adverse actions for federal employees fall into 3 general categories for federal employees: (1) a proposed suspension / demotion action based on misconduct; (2) a proposed removal action based on misconduct; and (3) a proposed removal action based on performance deficiencies (i.e. a Performance Improvement Plan (PIP)). Depending on the type of proposed disciplinary action, there can be various defenses and legal strategies used.  

Issuance of 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) from a Proposing Official, they should read over this notice very carefully. Each federal agency sets their own deadlines for submitting responses and requesting the information "relied upon" and these deadlines are usually strict. The deadlines are always short.  Some agencies provide 7 days in which to respond and some agencies provide 20 or 30 days. The deadlines vary and can be someone confusing. 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 of investigation, emails, recordings, video, photographs, etc.) that they are relying upon in proposing the action (often referred to as the information "relied upon.”). It is very important for a federal employee to request and obtain these materials prior to responding in writing or orally during the response process.  

Response to the Proposed Disciplinary Action

It is important for a federal employee to not only submit a comprehensive written response, along with documentation (affidavits, character letters, statements or other evidence) refuting the charges and specifications or in providing arguments for mitigation, but also to request an oral response. Oral responses are critical in the most serious of cases, those involving removal, but can also be important in suspension or demotion cases.  

1. The Written Response

The 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/work records, and other commendations for use in potential reduction of any penalty. 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 purposes of reducing the penalty (e.g. reducing a proposed removal to a demotion or suspension). The purpose of mitigation arguments are to show why the federal employee, even if some or all of the charges are true, should receive a less serious penalty than proposed.

2. The Oral Response Presentation

In addition, the oral response presentation by the federal employee and his or her counsel 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 and the mitigation arguments that need to be presented. 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 proposal is not warranted and to focus on potential mitigation arguments. The Deciding Official usually does not ask questions, but can and sometimes do. They may also have their own attorneys present during the oral response proceeding.

Mitigating Factors (Douglas)

While noted above, it is important to address mitigating arguments in the response stage.  Mitigating arguments argue for a reduction in the penalty should the disciplinary action be sustained (e.g. no intent, lack of clarity about rules, good performance, no prior discipline, etc.)  Mitigating factors were explained in the case of Douglas vs. VA, 5 MSPR 280 (1981), which established the appropriate way to review a potential penalty in a disciplinary case. There are 12 Douglas factors, which should be reviewed. These mitigating arguments can be used to attempt to reduce the penalty issued in a case.  

The Final Decision is Issued

Following the response, the Deciding Official will then issue a final decision on the proposed discipline. The timeline for issuing a decision varies between agencies, cases and deciding officials. Typically, when a decision on the proposed discipline has been made the federal employee they will be contacted and called into the Deciding Official’s office and given a copy of the decision, along with a listing of any appeal rights in the decision. The federal employee will also be asked to sign for the decision. Depending on the severity of the discipline issued by the Deciding Official, along with the underlying basis for the action, a federal employee may have one of more types of appeals available to them. Some federal employees may be able to appeal a disciplinary action to the Merit Systems Protection Board (MSPB), the grievance/arbitration procedure, the Equal Employment Opportunity (EEO) process, or perhaps file a whistleblower defense or other actions.  

Contact Us

Our law firm represents and advises employees on employment-related matters in MSPB appeals. If you need legal assistance with an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.