Sponsored

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.

We defend federal employees facing discipline. Federal employees serve the public with dedication, but like any workforce, they may face proposed disciplinary actions, ranging from demotions to removals. These actions are stressful and career-threatening, but federal law and regulations provide employees with meaningful rights and avenues to respond. As lawyers representing federal employees, it is important to understand the federal employee disciplinary process.

The disciplinary process, for most federal employees, is currently on hold during the Government Shutdown, but will resume as soon as federal employees are permitted to return to work.

Understanding the Notice of Proposed Discipline

When an agency intends to discipline most federal employees, it must first issue a written Notice of Proposed Discipline (e.g. Notice of Proposed Removal). This document outlines the charges, specifications, and the proposed penalty. Importantly, this is not the final decision. It is just a proposed action. At this stage, the employee (presuming they are not probationary or in a unique civil service category) generally has the right to respond both orally and in writing.

What to Consider in Reviewing the Proposal?

When reviewing the Proposed Discipline, it is important to look for a few things in evaluating it, including:

• Specificity of Charges: Does the notice clearly identify the alleged misconduct?
• Evidence Cited: Is the proposed action supported by reliable documentation or testimony?
• Penalty Proposed: Does the penalty align with the agency’s own disciplinary table and other similar cases?

The Employee’s Right to Respond

Federal employees generally have the right to respond, usually within 7 to 30 days depending on the severity of the proposed action and the agency involved. This is a critical window to:

• Request and Review the Evidence – Request the information upon which the notice is based.
• Refute Allegations – Challenge inaccuracies or incomplete facts in the notice.
• Provide Mitigation – Explain extenuating circumstances, work history, or personal factors that weigh against severe discipline.
• Highlight Other Issues – Agencies must follow law and regulations. Many disciplinary cases also involve discrimination and/or whistleblower retaliation which is relevant to a federal employee’s defense.

Often, agencies fail to consider mitigating factors such as years of good service, lack of prior discipline, or whether progressive discipline was properly applied at the proposal stage. These arguments can substantially reduce or eliminate penalties in the final decision.

The Deciding Official’s Role

A deciding official, separate from the proposing official, will hear the employee’s response and issue the final decision. The deciding official is required to give meaningful consideration to the employee’s defense. Ensuring that the response is written carefully, supported by evidence, and persuasive is crucial. It is also important for a federal employment attorney to prepare a federal employee for the oral response.

Appealing a Final Decision

If the agency issues an adverse action (such as removal, suspension over 14 days, or demotion), the employee may have the right to appeal. Options include:

• Merit Systems Protection Board (MSPB): For most serious adverse actions.
• Union Grievance Procedures: If covered by a collective bargaining agreement.
• Equal Employment Opportunity (EEO) Complaint: If discrimination or retaliation is involved.

Each forum has strict deadline, often as short as 30 days, so employees should seek a federal employment lawyer immediately after receiving the final decision.

Why Legal Representation is Important

Defending against proposed discipline is not just about challenging allegations. It requires legal representation, for such things as:

• Reviewing agency evidence and uncovering weaknesses.
• Gathering witness statements and supporting documents.
• Framing mitigation in a way that resonates with deciding officials.
• Preparing for potential appeals to MSPB or arbitration.

An experienced federal employment attorney can significantly improve outcomes, whether by securing withdrawal of the proposal, negotiating a lesser penalty, or successfully overturning an adverse decision on appeal.

Conclusion

Federal employees facing proposed disciplinary actions should remember: the notice is not a final decision. With well-prepared responses and counsel, many employees successfully defend their careers. The process is complex, but due process protections exist for a reason. Federal employees should have a federal employment lawyer retained to assist them in this process.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

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.

Our lawyers represent and defend federal employees in appeals pending before the Merit Systems Protection Board (MSPB). While litigation through the MSPB hearing process is one potential avenue, many cases are resolved more efficiently through settlement, which is a faster, more cost-effective resolution in such cases. Federal employees have several options for settling cases at the MSPB, each with its own structure. Settlements at the MSPB frequently involve disciplinary cases.

Settlement Options at the MSPB

Settlements at the MSPB typically arise in the context of appeals filed by federal employees challenging adverse actions taken by their employing agencies. These actions may include removals, suspensions over 14 days, demotions, or other personnel decisions. A successful settlement requires mutual agreement between the employee and the Agency. The settlement process cannot proceed without cooperation on both sides. For this reason, it is key to explore settlement options early in the litigation process.

The available settlement options at the MSPB include: (1) Informal Mediation with Agency Counsel; (2) the Mediation Appeals Program; (3) the Settlement Judge Program and (4) the MSPB Settlement Program.

1. Informal Mediation with Agency Counsel– This is often the quickest method of attempting to settle a case. Typically, at the start of an MSPB case, counsel for both parties may engage in informal discussions to exchange settlement proposals. In many cases, early informal negotiations and communications can lead to favorable outcomes.
2. Mediation Appeals Program– This occurs in a more formal setting and is typically conducted in person. A mediator from the MSPB, who serves as a neutral third party, is assigned to encourage and facilitate settlement. This seems to be the more common way of attempting to settle MSPB cases these days.
3. Settlement Judge Program– An administrative judge or other mediator, who is not assigned to adjudicate the case, is appointed to assist the parties in resolving the matter. In an attempt to settle such cases, settlement judges typically conduct settlement discussions remotely. As the settlement judge is not involved in the litigation of the case, they can provide candid, unbiased feedback, which can be very helpful in attempting to reach a settlement.
4. MSPB Settlement Program– The MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties. As the judge is already familiar with the legal issues involved, they are well suited to discuss the possibility of settlement in these cases and identify potential areas for compromise. Settlement discussions in this process typically occur at pre-determined times in a case, such as at the pre-hearing stage or shortly after the case is assigned to the administrative judge.

Approval of Settlement Agreements

When a settlement agreement has been met, parties will submit the agreement to the administrative judge for review. If the settlement agreement is lawful, clear, and voluntarily entered into, the judge will issue an order dismissing the appeal as settled. Then, the agreement will be entered into the official MSPB record for enforcement purposes.

Enforcement of Settlement Agreements

MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Though somewhat rare, if this becomes an issue for a client, the first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. However, if resolution cannot be achieved, the MSPB has the authority to investigate and order compliance with the agreement.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.