Legal Insider: Defending 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.

Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases. Each disciplinary action defense is different and legal assistance is necessary by attorneys familiar with federal employment law.

Disciplinary Process for Federal Employees

There are various types of disciplinary actions for federal employees. These can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee will first receive a notice of the proposed discipline and the opportunity to respond. A proposal will typically have an explanation of the conduct or issues leading to the proposed disciplinary action.

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to due process. A federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes they are attached to the proposal, and other times they must be requested. We request these materials before responding on behalf of federal employees at the beginning of a case.

Draft a Written Response

It is important to prepare a full written response to the allegations in proposed disciplinary cases. These responses are typically 5 to 20 pages in length, depending on the underlying facts and number of charges. Most written responses are typically due anywhere from 7 to 30 days after a proposal is given to a federal employee. The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also attach available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.

Presenting the Oral Response

The oral response portion of a federal employee’s response can be very important. While written responses can be key in refuting specific allegations, there is something very important about personally meeting with the Deciding Official that will make the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decision maker. After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline.

Appeals from Disciplinary Decisions

If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that may be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives or anticipates a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.