In the federal government, before a federal employee can be issued discipline, their supervisor first must provide a proposed discipline to the employee in writing. Generally, federal agencies issue proposed disciplines or adverse actions for i) suspension/demotion; ii) removal based upon misconduct; and iii) removal based upon poor performance, e.g., failure to satisfy the requirements of a performance improvement plan (PIP). If you receive a proposed disciplinary action, it is serious, and you should take it seriously. Carefully review all deadlines provided. It is possible to request an extension of the deadline. If you think you need one, we recommend proactively requesting it ASAP and not the day before the response is due. Most federal agencies offer federal employee the option to respond orally, respond in writing and on some occasions, both. Typically, we recommend responding in writing at a minimum to create a written record of your response mitigating the likelihood that the federal government can later dispute the arguments you raised against the proposed discipline. If they allow it, you should also request to respond orally.
What information should the federal government provide to support a proposed disciplinary action?
The information provided in support of the proposed discipline varies across federal agencies and depends on the type of discipline proposed. That said the supporting information, sometimes called the evidentiary record, should include a description of the allegations brought against you to include dates and relevant names when possible. If the discipline involved misconduct that involved a verbal communication (e.g., an offensive joke) or a physical interaction (e.g., a fight) it is likely witness statements will be included. If the proposed discipline related to a performance issue, the evidentiary record should include examples of your deficient work product measured against the expectations set forth in the PIP by your supervisor. Other information that can be included in the evidentiary record includes, emails, any form of written text messages, videos/photos, history of employee expenses, and time and attendance records. Said differently, if your supervisor relied upon a piece of information to propose the discipline, it should be made available to you while you respond to the proposed action. If it is not and excluded from the evidentiary record, then you should request it. Likewise, if you believe there is important evidence that you need to respond effectively, you can also request assistance in obtaining it. All these requests, and basically any communication regarding the response to the proposed disciplinary action should be in writing to avoid future disputes.
How do I respond in writing to a proposed discipline?
Your written response should be comprehensive, complete and organized. Speak matter of factly, not emotionally. Go through the proposed discipline and identify each fact and incident the federal government relied upon in support of the discipline. Each fact and incident should be addressed by you. The response is your opportunity to provide any information that you obtained and was omitted from the evidentiary record. It is also your opportunity to set the record straight regarding any incidents taken out of context or otherwise not accurately explained in full. Examples of supporting information may include, character statements, emails, affidavits (singed witness statements) or any other information that refutes the allegations against you. Good responses are easy to read. This means they are organized in a logical fashion and written clearly. While, this is an understandably challenging time, your response should be factual and professional. DO NOT use any language that is demeaning or can otherwise be construed as offensive.
How do I orally respond to a proposed discipline?
In the event you elect to respond orally, make sure you know the amount of time you will be allotted. Like in your written response, make sure your response is sincere and professional. If you also provided a written response, do not simply read from that. In our opinion, that will not increase your chances of success and in fact likely annoy the deciding officials because you did not use this time to add any evidence or information that they were not already aware of. However, it is okay to briefly highlight a few key facts or arguments from your written response. Example “I provided a detailed written response to the allegations against me. While, I do not intend to use the time today to repeat those arguments, I do not want to highlight a few key points…(which should not take more than 1-2 minutes)”
Instead responding orally provides you an opportunity to represent yourself as a genuine and trustworthy individual. It is also a time where you can demonstrate some level of accountability. This does not mean you have to agree with the allegations or admit to anything, rather you can say something simple like, “while I disagree with the allegations that I engaged in inappropriate conduct, I understand how people perceive my actions is important. I will be sure to be mindful of this moving forward.” At the conclusion of your oral response, thank everyone for their time and reiterate your request to have the discipline rescinded or mitigated.
How do I use Mitigating Factors (Douglas Factors) in my response?
In your response (oral or verbal) you should address the Douglas factors. In the federal government, supervisors rely upon the Douglas Factors to determine the appropriate level of discipline. Douglas Factors are irrelevant to considering whether you committed the acts at issue. You should include all the Douglas Factors in your response and explain how they support a rescission or reduction of the discipline (reducing the suspension to a letter of reprimand). You can find a complete list of the Douglas Factors here.
Final decision
Once you submit the response, the deciding official will render a final decision on the proposed discipline. This can take many days and/or weeks. We recommend that you do not reach out repeatedly for an update on the response. If you disagree with the deciding official’s decision, you may still have paths to appeal the action to the EEOC, MSPB or OSC.