Note, this is our first article in a series of articles titled “Dealing With….”. This special series is designed to provide simple practical advice of immediate usefulness to federal employees (and even local and state to a certain degree) dealing with certain situations specifically indicated in the article. We are beginning this series addressing more common situations.
Proposed Suspensions of Fourteen-Days or Less
A suspension is the temporary placement of an employee in a nonpay, nonduty status. Abbott v. U.S. Postal Service, 114 LRP 28204 (MSPB 2014), citing 5 USC 7501 (2). Also, the definition of suspension covers the placement of an employee on sick or annual leave against his or her will as well as unpaid absences. Abbott v. U.S. Postal Service, 114 LRP 28204 (MSPB 2014), citing Yarnell v. Department of Transportation, 108 LRP 43224 , 109 MSPR 416 (MSPB 2008). An employee, as defined by 5 USC 7501 (1), who the agency wishes to suspend for fourteen-days or less is entitled to due process. This includes:
- Advance written notice clearly indicating the specific reasons for the proposed action.
- Reasonable opportunity to respond orally and or in writing (typically fourteen-day response period).
- Representation by a designated individual to include a union representative (if bargaining unit) or an attorney.
- A written final decision containing the specific reasons the deciding official decided to take the action.
- Proper notice of appeal rights.
Federal employees who receive a notice of proposed suspension (fourteen days or less) are entitled to appeal, also referred to as “reply,” (to the deciding official), prior to a final agency decision concerning the proposed action, and after a final agency decision if otherwise unsatisfied with that decision. While the Merit Systems Protection Board (MSPB) maintains jurisdiction to review suspensions (effected, not simply proposed) of more than fourteen days (adverse actions) pursuant to 5 USC 7512 and 5 USC 7513 (d), a suspension of less than fourteen days may be appealed via grievance procedures (internal agency and contractual), Uniformed Services Employment and Reemployment Rights Act (USERA) (if applicable) and Equal Employment Opportunity complaints. Suspensions alleged to be in reprisal for whistleblowing, can be appealed through Individual Right of Action (IRA) complaints to the Office of Special Counsel (OSC) and to the MSPB. It is critically important the affected employee understands his or her rights as certain methods of appeal are mutually exclusive.
The following points should be applied or considered when receiving, and after being issued, a notice of proposed suspension.
- Do not refuse to meet with a management official to avoid being issued a notice of proposed suspension. You have no right to refuse to meet and could face additional discipline.
- Do not argue when receiving a notice of proposed suspension. Signing for receipt of a notice of proposed suspension does not constitute agreement with the contents (or proposal) and the issuing official (likely the proposing official) will not debate with you unless he is completely incompetent.
- Ensure the notice includes the “evidence file.” If it does not, immediately ask for the complete evidence file (all the information the Agency relied upon in proposing the action).
- Make three complete and collated copies of both the notice and any evidence file.
- If you are a bargaining unit member, contact a union representative for guidance and/or seek professional consultation. Not only seek advice from your union representative, ensure the representative is going to represent you to include a Designation of Representation to the Agency (authorizes the representative to contact the Agency on your behalf and receive information).
- Ensure you completely read the notice of proposed suspension and understand the information concerning presenting an oral and/or written reply.
- Obtain a copy of your collective bargaining agreement (union contract) if applicable. Familiarize yourself with the provisions of the Agreement that address discipline, grievances, and arbitration.
- You or your union representative should schedule an appointment with the deciding official if you intend on replying orally.
- Begin preparing your written reply to the deciding official.
- Determine whether there is additional evidence or information you should request from the Agency.
- If you need to request an extension of time to make your response to the agency proposed action, be sure the request is submitted to the deciding official in advance. Do not assume that no reply means the deciding official agreed to an extension.
- If, at any point, you develop concerns and the union representative is unable to address your concerns, you may want to seek a qualified second opinion prior to replying to the proposed action. Such opinions are generally inexpensive with quick turnarounds.
- Finalize your written and/or oral responses and present to the deciding official.
Employees facing discipline must be responsive to the agency notice. It is important affected employees act quickly and immediately begin preparing a reply as appropriate. Even if an employee does not intend to challenge the proposed action, an employee may effectively mitigate the proposed action to a lesser degree. However, this will not likely happen if no reply is provided.