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How should federal employees respond to proposed discipline?

On Behalf of | Oct 3, 2022 | Firm News

Federal laws protect federal employees from unwarranted dismissals, suspensions, demotions and other adverse workplace actions. These protections exist largely to ensure that federal agencies make decisions according to merit, rather than political whims. However, you can’t expect your rights to protect you all by themselves. You have to use them.

In many cases, that means responding appropriately to proposed discipline. The federal workforce differs from private sector employment in this way. Federal agencies must issue notice that they plan to discipline someone. And, if you’re the one facing potential discipline, you have the right to argue your case.

The disciplinary process

As the Merit Systems Protection Board (MSPB) notes, federal agencies must follow certain steps whenever they want to discipline someone. Of course, these steps vary slightly according to the proposed discipline. Additionally, the shape of the process will change depending on which statute your agency uses as the basis for its claim.

For an agency to discipline an employee, it must:

  • Collect evidence
  • Provide written notice of the proposed disciplinary action
  • Allow the employee to respond
  • Consider any reply from the employee
  • Issue written notice of its final decision

As you may see, this process affords you multiple chances to respond and plead your case.

Responding to notice of an investigation

You may or may not learn that your agency is investigating your actions. Typically, at this stage, the agency will be looking for emails, customer complaints, performance records, witness statements and other evidence that might weigh against you.

Your agency does not have to hear your side before providing written notice, but the MSPB notes it’s often a good idea to hear both sides early. Here, if your agency starts asking you for statements, you want to be careful. If you offer words to go on the record, you may not understand how the agency intends to use them.

You may not understand the severity of the potential discipline at this stage. Still, if you suspect you’re under investigation, you might wish to speak with an experienced federal employment lawyer. Your attorney can help you provide your side of the story in a way that is more likely to strengthen your position under the law.

Responding to proposed disciplinary actions

Each disciplinary proposal contain several key elements. For discipline under chapter 75, the MSPB says the notice must identify:

  • The law or regulation serving as the basis for the proposed discipline
  • A clear statement of the specific charges
  • Contact information for the deciding official and deadlines for both the written and oral reply
  • Notice that you can seek representation from a union rep or attorney
  • Directions to help you access the evidence (or a copy of the evidence)
  • The proposed penalty and the factors the deciding official will consider to determine its appropriateness

You want to make sure that your response addresses each of these factors appropriately. It is also important to understand how the information you provide in your response can help or hurt an eventual appeal.

As an example of how you can tailor your response to these factors, you should understand that any disciplinary proceedings filed under chapter 75 must address any relevant Douglas factors. These are the factors the Office of Personnel Management (OPM) says agencies must consider as they determine what level of discipline is appropriate for employee misconduct. These factors include such things as:

  • The nature and seriousness of the offense
  • Whether the offense was intentional, repeated or inadvertent
  • The employee’s position and level of public exposure
  • Past performance
  • Previous discipline
  • The employee’s potential for rehabilitation
  • The consistency of the proposed discipline with previous agency discipline
  • Any other mitigating factors

On the other hand, agencies do not need to consider these factors for disciplinary actions proposed under chapter 43.

Appealing disciplinary action

Sometimes, your agency may move forward with its intended discipline no matter what you do. At this point, you can still appeal to the MSPB. However, it’s worth noting that you don’t want to wait until this stage to seek skilled representation. As mentioned earlier, you can help or hinder your appeal earlier in the process. The information you add to the record in the earlier stages will stay on record.

Appeals tend to focus on legal arguments and questions about process. They typically rely on the facts established earlier in your case. You want to make sure you get all the appropriate facts on record ahead of an appeal.

Don’t wait until you’re in check

The key to a good response is often to realize that the disciplinary process contains multiple steps. At every step, you want your response to do more than set you up for success at that point. You want it to set you up for success at every step further down the line.

This is particularly true if you suspect the disciplinary action is retaliatory or discriminatory in nature. If your agency isn’t playing fair to star with, you can’t expect to receive a fair hearing at the early stages. Instead, you may want to think several steps ahead, like in a chess match, and aim for the later win.


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