Federal Employee Disciplinary or Adverse Actions
Federal employees may be subject to both disciplinary actions and adverse actions by their agency employers. These actions are typically justified by the agency in question as necessary for either poor job performance or misconduct. Disciplinary actions normally involve lesser penalties, while adverse actions may result in demotion, suspension, or removal from service. For either type of action, the employee has rights, including the right to notice, the opportunity to defend against the charges, and the right to appeal.
The attorneys at Capovilla & Williams are experienced in federal sector employment issues, including the defense of disciplinary and adverse actions, as well as Merit Systems Protection Board (MSPB) appeals. Call 866-951-0466, contact our live chat, or complete our online form to schedule a free, no-obligation consultation on your rights and options.
What Disciplinary Actions May Be Taken Against Federal Employees?
Federal employee disciplinary actions are typically undertaken by the agency for alleged violations of rules or standards. They do not involve long-term or permanent loss of job, pay, or benefits, but can have lasting consequences for an employee. Often, these disciplinary actions are a “stepping stone” to a later adverse action. Common disciplinary actions include:
- Verbal Counseling.
- Letter of Reprimand or Counseling.
- Suspension of 14 days or less.
Disciplinary actions for federal employees are governed by the Civil Service Reform Act, the Federal Service Labor-Management Relations Statute, and the Privacy Act.
What Adverse Actions May Be Taken Against Federal Employees?
Adverse actions are disciplinary actions that affect your job, pay, or benefits. These adverse actions include:
- Demotions, including a reduction in grade or pay.
- Suspensions of 14 days or more.
- Removal, or termination from employment.
- Furlough, or a temporary leave of absence without pay.
Adverse actions are governed by the Civil Service Reform Act, the Federal Service Labor-Management Relations Statute, and the Privacy Act.
How are Chapter 75 and Chapter 43 Actions Different?
The agency may pursue removals, demotions, and suspensions under Chapter 75 of Title 5 of the U.S. Code. For a removal or reduction in grade, the agency may pursue the action under Chapter 43 of Title 5. While the agency can decide which of the laws it will use, 5 U.S.C. § 4303 is typically used for performance issues, while 5 U.S.C. § 7513 is used when an alleged misconduct issue arises that “harms the efficiency of the service.” While a demotion or removal may be taken under either chapter, a disciplinary suspension may only be taken under 5 U.S.C. § 7513. The significant distinctions between the two actions are as follows:
| Chapter 43 | Chapter 75 |
|---|---|
| The agency must prove that performance was a critical element in action. | The Agency must show that action will promote the efficiency of the service. |
| The agency must meet the substantial evidence standard | The Agency must meet the preponderance of the evidence standard (a higher burden of proof). standard. |
| Employee must have been given notice of deficiencies, typically through a PIP | There is no requirement that the employee has been given warnings before the proposed action. |
| The performance deficiencies must be recent (no older than one year) | There is no time limitation, although the Agency must not unreasonably delay. |
| The MSPB cannot reduce the penalty once the Agency establishes performance deficiencies. | The MSPB may reduce the penalty even if the Agency establishes misconduct. |
It is essential for a federal employee facing an adverse action to understand which law the agency will use to proceed. The agency may not later re-characterize an action as taken under a different law.
Adverse Action Decisions
After an employee receives notice of an adverse action, including a demotion, suspension of 14 days or more, or a removal, the employee must respond to the charges in writing. After conducting an investigation and considering the employee’s response and evidence, the agency’s deciding official will issue a decision on the proposed adverse action. After considering the employee’s response and proof, the deciding official will issue a written notice of decision. If this written decision imposes a penalty with appeal rights, the employee may appeal the adverse action, which is typically taken to the Merit Systems Protection Board (MSPB).
Merit System Protection Board (MSPB) Appeals: Who May Appeal
If the agency decides to uphold the adverse action, the employee may choose to file an appeal. Most federal employees beyond their probationary period will have appeal rights to the Merit Systems Protection Board (MSPB), including:
- Competitive service employees or Senior Executive (SES) members who have completed their probationary period.
- Preference-eligible service employees with at least one year of continuous service.
- Non-preference-eligible service employees with two years of continuous service.
- Some Postal Service employees.
Employees outside of these categories should nonetheless consult an experienced federal employment attorney, as other types of appeal or redress may be available.
Even if the employee in question has appeal rights to the MSPB, the adverse action in question must meet MSPB criteria. The following types of actions may be appealed to the MSPB:
- Suspension of 14 or more days.
- Demotions (reductions in grade or pay).
- Performance-based actions under Chapter 43.
- Furloughs of 30 days or less.
- Removals or terminations.
Some actions, including reprimands, short suspensions, PIPs, and denied promotions, cannot be directly appealed to the MSPB.
Merit Systems Protection Board Appeal Process
Federal employees with MSPB appeal rights must file within the time specified on the notice of appeal rights. The MSPB appeal will follow a series of steps, including:
- Filing of Appeal on MSPB Form 185 or through the e-Appeal system.
- Receipt of an Acknowledgment Order. The Administrative Judge (AJ) assigned to your case will send this order, which will provide instructions to the parties.
- Agency Response and Record Submission. The agency will respond and will submit a written record within 20 days in most cases.
- Fact Finding (Discovery). The employee has the right to depose (take sworn statements), submit written questions under oath (interrogatories), or request documents from the agency.
- Prehearing Conference. Typically conducted telephonically, the conference provides an opportunity to identify issues, agree on the evidence, and discuss potential settlement.
- Hearing. The employee may request a hearing before the AJ to present witness testimony and other evidence.
- Initial Decision. The AJ will issue a written decision following the hearing.
- Petition for Review. Either party may request a petition for review by the entire Board.
The agency has the burden of proof, and in most cases, it must prove the allegations by a preponderance of the evidence. Note that this standard will vary in performance-based cases under Chapter 43.
What Rights Federal Employees Have Before the MSPB?
The MSPB process is complex, but employees have several crucial rights, including fundamental due process rights. These rights allow an employee to understand the process and prepare an effective defense. Employee rights include:
- The right to see the evidence of the allegations or action against you.
- The right to be represented by an attorney.
- The right to see and understand the basis for the action taken against you.
- The right to request documents or other evidence in the agency’s possession.
- The right to a hearing.
- The right to confront witnesses against you through cross-examination.
- The right to argue the merits of your defense to the AJ or to the MSPB.
If the AJ’s decision is in error, employees have the right to seek review by the entire Board. After this review, the employee has the right to seek judicial review in a federal appeals court.
What Are the Potential Results of an MSPB Appeal?
The MSPB has the power to grant significant and vital relief to federal employees challenging disciplinary or adverse actions. The AJ or the full Board may take the following actions:
- Reversal of Agency Action or Decision. Depending on the situation, this may involve reinstatement, back pay, and the removal of the action from the employee’s record.
- Mitigation. The MSPB may sustain the charges but may reduce the penalty. This may involve reducing a removal to a suspension or demotion.
- Affirmation: The MSPB may affirm the agency’s action.
- Attorney’s Fees and Costs: If you prevail before the MSPB, federal regulations provide for a grant of attorney’s fees and some costs involved in defending your case.
While every case is different, prevailing before the MSPB typically puts the appellant employee in a position to recover damages and fees and to continue federal service.
If you are a federal employee facing a disciplinary or adverse action, contact the experienced attorneys at Capovilla & Williams for a free, no-obligation consultation. We will discuss your appeal rights and review options for moving forward. All discussions with you are completely confidential, regardless of whether you decide to hire our law firm. Call 866-951-0466, contact our live chat, or complete our online form, and we will get back to you.
