This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
We defend federal employees facing discipline. Federal employees serve the public with dedication, but like any workforce, they may face proposed disciplinary actions, ranging from demotions to removals. These actions are stressful and career-threatening, but federal law and regulations provide employees with meaningful rights and avenues to respond. As lawyers representing federal employees, it is important to understand the federal employee disciplinary process.
The disciplinary process, for most federal employees, is currently on hold during the Government Shutdown, but will resume as soon as federal employees are permitted to return to work.
Understanding the Notice of Proposed Discipline
When an agency intends to discipline most federal employees, it must first issue a written Notice of Proposed Discipline (e.g. Notice of Proposed Removal). This document outlines the charges, specifications, and the proposed penalty. Importantly, this is not the final decision. It is just a proposed action. At this stage, the employee (presuming they are not probationary or in a unique civil service category) generally has the right to respond both orally and in writing.
What to Consider in Reviewing the Proposal?
When reviewing the Proposed Discipline, it is important to look for a few things in evaluating it, including:
- Specificity of Charges: Does the notice clearly identify the alleged misconduct?
- Evidence Cited: Is the proposed action supported by reliable documentation or testimony?
- Penalty Proposed: Does the penalty align with the agency’s own disciplinary table and other similar cases?
The Employee’s Right to Respond
Federal employees generally have the right to respond, usually within 7 to 30 days depending on the severity of the proposed action and the agency involved. This is a critical window to:
- Request and Review the Evidence – Request the information upon which the notice is based.
- Refute Allegations – Challenge inaccuracies or incomplete facts in the notice.
- Provide Mitigation – Explain extenuating circumstances, work history, or personal factors that weigh against severe discipline.
- Highlight Other Issues – Agencies must follow law and regulations. Many disciplinary cases also involve discrimination and/or whistleblower retaliation which is relevant to a federal employee’s defense.
Often, agencies fail to consider mitigating factors such as years of good service, lack of prior discipline, or whether progressive discipline was properly applied at the proposal stage. These arguments can substantially reduce or eliminate penalties in the final decision.
The Deciding Official’s Role
A deciding official, separate from the proposing official, will hear the employee’s response and issue the final decision. The deciding official is required to give meaningful consideration to the employee’s defense. Ensuring that the response is written carefully, supported by evidence, and persuasive is crucial. It is also important for a federal employment attorney to prepare a federal employee for the oral response.
Appealing a Final Decision
If the agency issues an adverse action (such as removal, suspension over 14 days, or demotion), the employee may have the right to appeal. Options include:
- Merit Systems Protection Board (MSPB): For most serious adverse actions.
- Union Grievance Procedures: If covered by a collective bargaining agreement.
- Equal Employment Opportunity (EEO) Complaint: If discrimination or retaliation is involved.
Each forum has strict deadline, often as short as 30 days, so employees should seek a federal employment lawyer immediately after receiving the final decision.
Why Legal Representation is Important
Defending against proposed discipline is not just about challenging allegations. It requires legal representation, for such things as:
- Reviewing agency evidence and uncovering weaknesses.
- Gathering witness statements and supporting documents.
- Framing mitigation in a way that resonates with deciding officials.
- Preparing for potential appeals to MSPB or arbitration.
An experienced federal employment attorney can significantly improve outcomes, whether by securing withdrawal of the proposal, negotiating a lesser penalty, or successfully overturning an adverse decision on appeal.
Conclusion
Federal employees facing proposed disciplinary actions should remember: the notice is not a final decision. With well-prepared responses and counsel, many employees successfully defend their careers. The process is complex, but due process protections exist for a reason. Federal employees should have a federal employment lawyer retained to assist them in this process.
Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
