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Responding to a notice of proposed removal or other discipline

Receiving a notice of proposed removal or other discipline is a serious and nerve-wracking event, but most federal employees are protected by due process rights that give you a chance to defend yourself.  Understanding your rights and the discipline process and using that knowledge to present a persuasive case to the deciding official can result in reduction of the proposed penalty or even cancellation of the action.

What are my rights?

There are generally two types of notices of proposed removal in the federal government – notices based on poor performance under 5 U.S.C. Chapter 43 and notices based on misconduct (which could include performance and/or other allegations of wrongdoing) under 5 U.S. C. Chapter 75.  If you were issued a notice based on performance under Chapter 43, see our blog posts on the topic here and here.  This post addresses notices based on misconduct under Chapter 75.

If your supervisor proposes to remove you or impose other major discipline (such as demotion or suspension) for misconduct and you are not in a probationary period, you should have many protective rights.  In most non-probationary federal sector cases, the Agency must:

  • Give you written notice of the proposed action;
  • Inform you of their reasons for the proposal (i.e., the “charges” against you);
  • Inform you that you have right to review the evidence or materials they relied on when they proposed the action and give you the opportunity to review that material if you request it;
  • Inform you that you have the right to choose a representative to assist you. Your representative may be a member of the Union, an attorney, or could even be another employee or non-employee under most circumstances;
  • Give you a reasonable opportunity to respond to the proposal in writing and/or orally;
  • Give you the opportunity to submit documents, including medical documents, in support of your response.

When do I have to respond?

The Agency must give you a reasonable opportunity to reply.  In most cases, this means they must give you at least 7 days to respond to a proposed removal, demotion, or suspension of more than 14 days and they must give you at least 24 hours to respond if the proposed penalty is a suspension of 14 days or less.  If you need more time, you should request an extension in writing and state the reason for your request (for example, if you need time to gather evidence or statements on your behalf, to consult an attorney, or to obtain records from your medical provider).

Should I respond in writing or orally?

In most cases, you should respond orally and in writing.

A written response gives you the chance to lay out your defense and any mitigating circumstances in a clear and calm manner, to make sure you don’t leave any facts or arguments out, to present documents that support your defense, and to give the deciding official a written document they can refer back to if they have questions later, when making their decision.

An oral response gives you the opportunity to make your case directly to the deciding official.  In an oral response, your tone, words, and demeanor can help the deciding official understand and believe your side of the story regarding the charges against you and can help them decide that a reduced penalty is appropriate even if some of the charges are true.

Therefore, in most cases we recommend that you respond orally and in writing.

What should I include in my response?

In your response, you should address each of the charges against you; you may explain why the allegations are not true or why they are true but do not constitute misconduct under the law.  In some cases, you might admit the misconduct but focus on explaining mitigating circumstances, such as your acceptance of responsibility.

You should also explain any other mitigating evidence or reasons why the penalty should be reduced, even if the deciding official sustains (believes and upholds) some or all of the charges.  Specific mitigating factors you should include are outlined under the “Douglas Factors,” discussed below.

You can also submit documents, medical records, statements from co-workers or other witnesses, and/or other information on your behalf to refute the charges or to support the mitigating circumstances.  However, when gathering information or speaking with an attorney, be careful not to access or share information or documents that are classified, confidential, sensitive, or protected by regulations (such as the Privacy Act or HIPPA) without authorization.

What factors will the deciding official consider?

First, the deciding official will consider the proposal, the Agency’s supporting documentation, and any information you present to decide whether the charge(s) against you should be sustained. If none of the charges are sustained, the action against you should be rescinded.

If one or more of the charges against you is sustained, the deciding official determines whether a proposed major adverse action “promotes the efficiency of the service” and whether the proposed penalty is warranted after considering any mitigating or aggravating factors.  The factors the deciding official considers are commonly referred to as the “Douglas Factors” and include:

  1. The nature and seriousness of the offense, and its relation to your duties, position and responsibilities, including whether the offense was intentional, technical or inadvertent, or committed maliciously or for gain
  2. Your job level and type of employment, including supervisory or fiduciary role, contacts with the public and prominence of the position
  3. Your disciplinary record
  4. Your work record (such as your length of service and history of job performance)
  5. The effect of the offense on your ability to perform at a satisfactory level and your supervisor’s confidence in your ability to perform
  6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses
  7. Consistency of the penalty with any agency table of penalties
  8. The notoriety of the offense or its impact on the agency’s reputation
  9. The clarity with which you were on notice of any rules that were violated or had been warned about the conduct in question
  10. Your potential for rehabilitation
  11. Mitigating circumstances (such as unusual job tension, personality problems, mental impairment, harassment, bad faith, malice or provocation)
  12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by you or others

When will I get a decision?

You will receive a written decision after you submit a response or after the response period has passed if you do not submit one.  If an adverse action is imposed that is greater than a 14-day suspension, that action may not go into effect earlier than 30 days from the date you received notice of the proposal.

Do I need an attorney to respond to proposed discipline?

You are not required to be represented by an attorney to respond to proposed discipline.  However, proposed removals and other disciplinary actions are serious matters that can end or derail successful careers.  An experienced attorney can help you identify legal deficiencies in the Agency’s proposal, identify and advise you on defenses to the charges against you, and identify and advise you on mitigating circumstances that could convince the Agency to reduce or forego any penalty.  An experienced attorney can present your written response in a clear and persuasive way, help you prepare an effective oral response (if you choose to give one), and/or present a supplemental oral response through the attorney.

An experienced attorney can also advise you on your appeal or grievance rights, advise you on the intersection of any other possible factors that could affect your rights (such as EEO discrimination or whistleblower retaliation), and/or attempt to negotiate a resolution for you with the Agency.

If you have received a notice of proposed removal or other disciplinary action or have questions about the process, Alan Lescht and Associates can help.  We represent federal sector employees nationwide and around the world in proposed removals disciplinary actions.  Click here to read more about our federal employee discipline practice, here to learn more about our federal employee practice in general, or here to send us an email about the issue(s) you are facing and find out how we can help.

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