First Steps in Responding
This article is written from the perspective of an agency Employee Labor Relations Chief. We will provide you the opportunity to understand the agency perspective in proposed actions to offer you the opportunity to respond to a proposed action in a professional and accurate manner, increasing the possibility of a positive outcome. We will do our best to avoid getting overly technical.
During the course of your federal career, you may find yourself the subject of a proposed agency action. Frankly, the longer your career and more complex your job functions, the greater this likelihood. This proposal may take the form of an admonishment or removal (being fired), or anything in between. Subsequent response and appeal rights will vary based on whether you are bargaining unit or non-bargaining unit (union covered or not). Either way, it is important you understand some basic principles to respond accurately and increase your chances of either mitigating or overturning the proposed action.
All first instinctive responses to an agency proposed action are emotionally based. The emotional response is commensurate with the severity of the agency proposed action and is understandable, especially in cases in which your removal (being fired) from federal service may be proposed. For example, an employee will be far more upset with a proposed removal from federal service compared to a simple reprimand. Regardless, it is important for the recipient of a proposed action to maintain professionalism both upon receipt of the Agency proposed action and throughout the process of responding to the agency and then possibly appealing either via the grievance process through arbitration, the Merit Systems Protection Board, or even the EEO process.
When the agency delivers the proposed action, the evidence it relied upon in proposing the action should be attached to the proposed action. In some cases, local bargaining agreements, if applicable, stipulate you may request the “evidence file” as opposed to having it attached to the proposed action. At our location, I require ELR Specialists to always include the evidence file despite the terms of the Master Agreement. If you did not receive the evidence file, be sure to obtain a copy as quickly as possible, usually from the Employee Labor Relations Specialist assigned to your case. When the proposal is delivered, it is just that- a proposal. It is not a final decision or action. Additionally, the agency official delivering the proposed action is not (should not) going to engage you in a debate concerning the merits of the case and therefore, any attempt by you to launch into an argument will be purely wasted effort and possibly detrimental to your position. Also, refusing to sign for the proposed action only makes you look foolish and unprofessional as your lack of signature will have no bearing on the outcome or otherwise stall the process. It is simply acknowledgement of receipt of the documents. Go back to work and do the best job you can. You may also consider requesting leave for a self-imposed “cool off” period. In some cases, the agency may place you on some form of authorized absence or administrative leave. In rare cases, an agency may place you on enforced leave.
After receiving the proposed action and overcoming any emotional reaction, you will need to determine your response method, if any. This will be determined largely by 1) your bargaining unit status, 2) severity of the proposed action, and 3) the technical capability of your local union if you are a bargaining unit member. You may wish to hire a consultant for a second opinion or even for representation depending on the severity of the proposed action. Either way, there will be certain deadlines you will have to meet if you wish to respond to the proposed action to defend yourself. Typically, most Master Agreements and regulatory controls provide a 14 calendar day response period and no final determination until 30 days. In certain cases, such as invocation of crime provisions, the response period may be shortened. Therefore, you should determine 1) whether you want to respond and 2) your method of response (written, oral, or both). If you wish to submit a written reply standing alone or in concert with an oral response, your written response should be submitted prior to the expiration of the time limits. If covered by a collective bargaining agreement, be sure to consult that agreement for any specific provisions.
Whether you respond orally or in writing, or both, it is vitally important your response be honest, sincere, and focused. One of the biggest issues we run into as agency representatives is either the employee or union “throwing in the kitchen sink.” This is one of the surest ways to undermine your response and potentially open you to discovery issues further down the road. Your response should be laser like in precision, strictly limited to the charge and specification outlined in the agency proposed action. The simple reason is that the agency only need to prove the specification and charge to sustain a proposed action. If the charge and specification indicated by the agency is untrue or not completely true, you should address that fact through evidence (witness testimony or documents primarily). You may also present mitigating factors for the deciding official to consider in arriving at a decision. Mitigating factors may include issues in your personal life. In adverse actions, particularly with appeal rights to the Merit Systems Protection Board, you will also want to address the application of Douglas Factors since these factors must be balanced in each adverse action to arrive at the appropriate penalty determination. (See, Douglas v. Veterans Administration, 81 FMSR 7037, 5 MSPR 280 (MSPB 1981); also see, Broida Guide to MSPB Law: Douglas Standards; Decision to Reflect Consideration of Mitigating Factors or MSPB Imposes Maximum Reasonable Penalty.)
We advise clients to never place faith in going to hearing, whether MSPB, arbitration, or EEO. The further in the appeals process you go, the longer and more technical the process becomes. Furthermore, you will first incur the effectuation of any decision (i.e. lost pay, removal) before you make it to hearing. Therefore, your response to the proposed action deserves the greatest attention and effort. If you are represented by the union, ensure your representative is qualified to represent you. Check to see if your union has an attorney on staff or will authorize reimbursement for a consultant to evaluate your case. You want to seriously consider a “first look” or “second opinion” by one of our consultants for the one-time fee of $125, which many unions now authorize for reimbursement.
In future articles, we will cover technical aspects of responding, Last Chance Agreements, penalty mitigation, performance based actions, and alternative dispute resolution methods.
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