Legal Insider: Rights for Federal Employees in Disciplinary Cases

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.

By John V. Berry, Esq.

More common types of federal agency “adverse actions” (more serious discipline) include removal, demotion, reduction in grade or suspensions of greater than 14 days. Some types of “disciplinary actions” (lessor discipline) include letters of warning, letters of reprimand, oral or written counseling or suspensions of less than 15 days.

Federal Employee Rights in Disciplinary Cases

If a federal employee is issued a proposed disciplinary action, the proposal will normally include a description of the alleged misconduct and the type of charge against the employee (e.g., insubordination, theft, conduct unbecoming, lack of performance, etc.).

Federal employees in adverse action matters (suspensions of 15 days and above, and demotion matters) and in some disciplinary actions (suspensions of any length (usually 14 days and below)) have the following rights: (1) right to an attorney; (2) right to respond to the proposal in writing or orally, and (3) the right to review all of the materials relied upon in the issuance of the Proposal.

We recommend that employees involved in proposed disciplinary or adverse action always request from the agency all of the materials that it is relying upon to propose discipline. Sometimes disciplinary actions will not be drafted properly and reviewing the materials relied upon can help in responding to the discipline.

Present Both a Written and Oral Response

We also usually recommend, in most cases, that a federal employee present both a written response and an oral response to the deciding official (the decision maker on the disciplinary action) in a proposed disciplinary or adverse action.

The oral response portion of a federal employee’s response can be extremely important and usually follows the submission of the written response.

Typically, when we assist federal employees in this regard, we obtain a full statement of facts from the federal employee involved and prepare a full written rebuttal to the allegations. We also contact the deciding official in the personnel action and request an appointment for the oral response.

In these types of cases, we respond to both the merits of the alleged conduct and argue for mitigation under the Douglas Factors. Douglas Factors typically are mitigating reasons as to why a particular disciplinary penalty should be reduced (i.e., based on years of successful performance, no prior disciplinary actions, lack of clarity about the rules at issue and other reasons why a disciplinary penalty should not be so harsh).

Conclusion

If you are in need of assistance in the federal employee discipline process please contact our office at (703) 668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.