Date: May 12, 1993
Part 227: Personnel Relations and Services
Originating Office: Division of Personnel Management
2.1 Purpose. The purpose of this chapter is to establish Fish and Wildlife Service (Service) policies and procedures for taking disciplinary and adverse actions against employees for either disciplinary or nondisciplinary reasons when it is determined that such actions will promote the effective and efficient operation of the Service. Examples of disciplinary reasons include on or off-duty misconduct, excessive leave use, and violations of leave procedures. Examples of nondisciplinary reasons include physical or mental inability to perform the duties of the position, failure to maintain a condition required for employment, or lack of work or funds necessitating a furlough.
A. Actions Covered. This chapter covers the following actions:
(1)A letter of warning;
(2)A letter of reprimand;
(3)A suspension for 14 days or less;
(4)A suspension for more than 14 days, including an indefinite suspension;
(5)A reduction in grade;
(6)A reduction in pay; and
(7) A furlough of 30 days or less.
B. Actions Excluded. The following actions are excluded from coverage under the provisions of this chapter:
(1) A suspension for 14 days or less taken for national security reasons under 5 U.S.C., Chapter 75, Subchapter IV, National Security;
(2) An action imposed by the Merit Systems Protection Board (MSPB) under the authority of 5 U.S.C., Chapter 12, Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action;
(3) A reduction-in-force action under 5 U.S.C. Chapter 35, Retention Preference, Restoration, and Reemployment;
(4) A reduction in grade or removal action under 5 U.S.C., Section 4303, Actions Based on Unacceptable Performance;
(5) An action taken under a statute other than 5 U.S.C. that specifically excepts the action from Subchapters I or II of 5 U.S.C., Chapter 75, Adverse Actions;
(6) An action that entitles an employee to grade retention under 5 CFR, Part 536, Grade and Pay Retention, and an action to terminate this entitlement;
(7) A voluntary action by an employee;
(8) An action taken or directed by the Office of Personnel Management (OPM) under 5 CFR Part 731, Suitability;
(9) Termination of appointment on the expiration date specified as a basic condition of employment at the time the appointment was made;
(10)An action that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position of equivalent grade and pay if the employee was informed that it was to be of limited duration;
(11) Cancellation of a promotion to a position not classified prior to the effective date of the promotion;
(12) Placement of an employee serving on an intermittent or seasonal basis in a temporary nonduty, nonpay status in accordance with conditions established at the time of appointment;
(13) Reduction of an employee's rate of basic pay from a rate that is contrary to law or regulation;
(14) The reduction in grade of a supervisor or manager who has not completed the probationary period under 5 U.S.C. 3321(a)(2) if such a reduction is to the grade held immediately before becoming a supervisor or manager, and is strictly based upon performance as a supervisor/manager;
(15) Reassignment of a supervisor or manager who has not completed the probationary period under 5 U.S.C. 3321(a)(2) and that is based upon performance as a supervisor/manager, even though the position from which the employee left to accept the supervisory/managerial position was at a higher grade than the supervisory/managerial position; or
(16) Termination of an employee serving a probationary or trial period after initial appointment for unsatisfactory performance or conduct.
2.3 Authorities. This chapter is promulgated under the following authorities:
A. 5 U.S.C., Chapter 75, Adverse Actions;
B. 5 CFR Part 752, Adverse Actions;
C. Federal Personnel Manual 752, Adverse Actions; and
D. 370 Departmental Manual 752, Discipline and Adverse Actions.
2.4 Policy. It is the policy of the Service that disciplinary and adverse actions will be taken against employees only for such reasons as will promote the efficiency and effectiveness of the Service's mission. When practical, actions under this chapter should be taken on a progressive and constructive basis. Actions covered by this chapter will be taken only when it is evident that other supervisory techniques or actions have either failed to correct the particular employee problem or would be inappropriate in so doing. Such other supervisory action may include supervisory counseling, employee training, position restructuring, or reassignment. No action effected under this chapter will be based on discrimination because of race, age, religion, sex, or national origin, or any physical or mental handicap that is not debilitating for the position occupied. Additionally, no action will be taken against an employee because of marital status or partisan political reasons. Management may not take a disciplinary/adverse action on the basis of any of the reasons prohibited by 5 U.S.C. 2302, that defines prohibited personnel practices. Prohibited personnel practices include taking or failing to take, or threatening to take or threatening to fail to take, a personnel action against an employee as a form of reprisal against the employee for whistleblowing, exercising an appeal right, or refusing to obey an order that would require violation of a statute.
Generally, disciplinary/adverse action is initiated by the employee's first-level supervisor. In cases of adverse action where the process is two-tiered (e.g., the employee is entitled to an advance written proposal notice and a decision notice), the proposal is generally issued by the first-level supervisor, and the decision notice is issued by a higher level official, generally, the employee's second-level supervisor. In all instances of disciplinary/adverse action, the supervisory official must consult with the employee's servicing personnel office before initiating and/or effecting a disciplinary/adverse action. A disciplinary/adverse action proposal or decision must receive a technical compliance review by the servicing personnel office prior to issuance to the employee. Upon issuance, the supervisor must provide a signed and dated copy of the disciplinary/adverse action to the employee's servicing personnel office.
A. The Director is responsible for Servicewide direction of the policies and procedures governing employee disciplinary and adverse actions.
B. The Assistant Director - Policy, Budget and Administrationis responsible for the effective administration of the policies and procedures set forth by this chapter.
C. The Chief, Division of Personnel Management (DPM), is responsible for developing, implementing, and disseminating Service policy and procedures regarding employee disciplinary and adverse actions.
D. The Regional Directors, Regions 1 - 8, are responsible for the proper administration and management of the subject policy within their respective Regions in accordance with OPM, Departmental, and Service processes and procedures.
E. The Regional Personnel Officers, Regions 1 - 8, and the Chief, Branch of Headquarters Operations, DPM, are responsible for appropriately carrying out the provisions set forth by this chapter in the Regions and in Headquarters, respectively. Regional Personnel Officers and the Chief, Branch of Headquarters Operations, also provide services for Region 8 employees in the disciplinary and adverse actions arena.
F. Supervisors are responsible for establishing and maintaining standards of conduct and performance among the employees they supervise, and for initiating employee remedial action, where appropriate, for disciplinary or nondisciplinary reasons when such action will serve the best interests of the Government.
G. Employees are responsible for meeting established conduct and performance standards and for maintaining an acceptable level of such to ensure continued Federal employment.
A. Adverse Action. A suspension, removal, reduction in grade or pay not at the employee's request, furlough of 30 days or less, or other action that results in an involuntary separation or reduction in grade or pay.
B. Crime Provision. When there is reasonable cause to believe the employee is guilty of a crime for which a sentence of imprisonment may be imposed.
C. Current Continuous Employment. A period of employment immediately preceding an adverse action in the same or similar positions without a break in Federal civilian employment of a workday.
D. Days. Calendar days.
E. Disciplinary Action. An official letter of warning or reprimand or other personnel action taken for disciplinary reasons.
F. Douglas Factors. Twelve specific factors established by the MSPB that must be considered when initiating disciplinary/adverse action.
G. Nexus. The relationship between the reasons for disciplinary/adverse action and the ability of the Service to discharge its responsibilities.
H. Preponderance of the Evidence. The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.
I. Similar Positions. Positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications so that the incumbent could be interchanged between the positions without significant training or undue interruption to the work.
2.7 Letter of Warning. A letter of warning is a written statement of admonishment given to an employee for disciplinary reasons based on an act of misconduct and/or for a performance deficiency when oral counseling has not caused improvement in the past or would not be expected to cause improvement. (See 2.24 for additional guidance on taking action under this chapter based upon performance.) To determine if a letter of warning is an appropriate penalty for the offense, refer to 2.17, Factors to Consider in Selecting a Penalty, and Appendix 1, Disciplinary Action Guide. A letter of warning will be in the form of an official letter or memorandum and must contain the following:
A. Specification of the reasons for its issuance (See 2.18, Describing the Charges, for assistance in determining or writing the reasons.);
B. Citation of any Service/Departmental/Federal rules or regulations that have been violated by the employee;
C.Prior efforts to correct misconduct/poor performance, e.g., counseling sessions and/or oral warnings. Any other aggravating and/or mitigating factors taken into consideration in determining the appropriateness of the penalty, e.g., Douglas Factors (See 2.17 for specific guidance on Douglas Factors.);
D. Any action to be taken by the employee to prevent a recurrence of the infraction and further disciplinary action, and any action to be taken by the supervisor to assist the employee.
E. A statement that failure to correct the misconduct and/or poor performance or further instances of unsatisfactory conduct/performance may result in more severe disciplinary action up to and including removal from the Federal Service;
F. A statement that the employee may make a written explanation to be retained with the letter of warning;
G. Retention provisions of a letter of warning, including early withdrawal and destruction, as described in 2.8;
H.A statement that the employee may contest the warning in accordance with the Service Grievance Procedures contained in 227 FW 3, or through a negotiated grievance procedure, if applicable;
I. A general statement of referral of the employee to the Employee Assistance Program (EAP) for any personal problem that may be contributing to or causing the conduct and/or performance deficiency, and/or to bring forward medical documentation of a medical condition that might be relevant to the work problems. (See 227 FW 4 for further guidance on the EAP.); and
J. A signature and date line for the employee to acknowledge receipt of the letter of warning.
2.8 Retention of a Letter of Warning. A letter of warning will not be filed in the employee's Official Personnel Folder (OPF), but rather will be retained by the supervisor in his/her supervisory employee files. One year after issuance of the warning or when the employee leaves the Service if less than 1 year, the warning will be removed from the files and destroyed. If the employee's conduct/performance so warrants, the warning may be withdrawn for destruction prior to 1 year after issuance. When a warning has been withdrawn early and destroyed, the supervisory official will so inform the employee in writing. The supervisor will not retain a copy of the written notice of early withdrawal and destruction of the letter of warning in his/her supervisory files. An employee may not file a grievance based on a supervisor's decision not to remove a letter of warning prior to completion of the period of retention.
2.9 Letter of Reprimand. A letter of reprimand is a written statement of official censure given to an employee for misconduct and/or a performance deficiency of such concern that a temporary record of the incident should be established. This concern may be due to repetitive minor incidents of misconduct and/or performance deficiencies. (See 2.24 for additional guidance on taking action under this chapter based upon performance.) A letter of reprimand is appropriate when an employee's misconduct and/or poor performance warrants discipline more severe than a letter of warning but is not so serious as to require more rigid discipline involving an employee's loss of pay (e.g., a suspension). In determining if a letter of reprimand is an appropriate penalty for the offense, refer to 2.17, Factors to Consider in Selecting a Penalty, and Appendix 1, Disciplinary Action Guide. A letter of reprimand will be in the form of an official letter or memorandum and must contain the following:
A. Specification of the reasons for its issuance (See 2.18, Describing the Charges, for assistance in determining or writing the reasons.);
B. Citation of any Service/Departmental/Federal rules or regulations that have been violated by the employee;
C. Prior efforts to correct misconduct/poor performance, e.g., counseling sessions, oral and/or written warnings. Any other aggravating/mitigating factors considered in arriving at the penalty, e.g., Douglas Factors (See 2.17 for specific guidance on Douglas Factors.);
D. Any action to be taken by the employee to prevent a recurrence of the infraction and further disciplinary action, and any action to be taken by the supervisor to assist the employee;
E. A statement that failure to correct the misconduct and/or poor performance or further instances of unsatisfactory conduct/performance may result in more severe disciplinary action up to and including removal from the Federal Service;
G. A general statement of referral of the employee to the Employee Assistance Program for any personal problem that may be contributing to or causing the conduct and/or performance deficiency, and/or to bring forward medical documentation of a medical condition that might be relevant to the work problems (See 227 FW 4 for further guidance on the EAP.); and
H. A signature and date line for the employee to acknowledge receipt of the letter of reprimand.
2.10 Retention of a Letter of Reprimand. A letter of reprimand will be filed on the left hand side of the employee's OPF for a period not to exceed 2 years. The reprimand will be removed from the OPF and destroyed 2 years after issuance or when the employee separates from the Service if less than 2 years has elapsed. If the employee's conduct so warrants, the employee's supervisor may elect to have the reprimand withdrawn and destroyed prior to 2 years after issuance. A withdrawn letter of reprimand may not be used to support future charges or be considered in connection with any further proposed disciplinary action. If the supervisor decides upon early withdrawal and destruction of the reprimand, he/she will so inform the employee in writing and provide a copy of the written notice to the employee's servicing personnel office to effect such an action. The copy of the written notice of early withdrawal and destruction will be destroyed simultaneously with the letter of reprimand by the servicing personnel office.
2.11 Right of Redress. An employee receiving a letter of reprimand may make a written explanation to be filed with the reprimand in the employee's OPF. In addition, the employee may contest the letter of reprimand under the Service Grievance Procedures contained in 227 FW 3, or through a negotiated grievance procedure, if applicable. An employee may not base a grievance on the supervisor's decision to not remove a letter of reprimand prior to completion of the period of retention.
2.12 Suspension for 14 Days or Less. A suspension for 14 days or less is an enforced, temporary nonpay status and absence from duty taken as a form of employee discipline. Such action is taken for significant misconduct and/or performance deficiencies. It may also be taken for continued or repeated acts of minor misconduct and/or unsatisfactory performance, but usually only after prior efforts of counseling, warning, and/or reprimand have failed. (See 2.24 for additional guidance on taking action under this chapter based upon performance.)
A. The following employees are covered by the provisions for suspensions of 14 days or less:
(1) An employee in the competitive service who has completed a probationary or trial period;
(2)An employee in the competitive service serving in an appointment that requires no probationary or trial period, and who has completed 1 year of continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;
(3) An employee with competitive status who occupies a position under Schedule B of 5 CFR Part 213; and
(4) An employee who was in the competitive service at the time his/her position was first listed under Schedule A, B, or C of the excepted service, and still occupies that position.
B. An employee against whom a suspension of 14 days or less is initiated is entitled to receive an advance written proposal notice of at least 24 hours. A notice of proposed suspension will be in the form of an official letter or memorandum and must contain the following:
(1) Number of days suspension is proposed;
(2) The specific reasons for the proposed suspension, including any Service/Departmental/Federal rules or regulations that have been violated stated with enough clarity and detail to provide the employee a fair opportunity to respond and refute the reasons. (See 2.18, Describing the Charges, for assistance in determining or writing the reasons.);
(3) A "cause" for the proposed action (e.g., a recognizable and current offense against the employer-employee relationship -- nexus) (See 2.16 for additional information regarding nexus.);
(4) Any aggravating and/or mitigating factors considered in arriving at the proposed penalty (e.g., Douglas Factors). Itemizing and relating aggravating/mitigating factors to the selection of proposed action will give the employee the full benefit of management's reasoning and provide a better basis for the employee's written and/or oral answer. It will also aid third parties in reviewing the case on appeal. (See 2.17 for specific guidance on Douglas Factors.)
When an employee's past disciplinary record is to be considered as part of the basis for the proposed penalty, a statement must be included that specifically cites and identifies the previous infractions and penalties. If cited, the previous disciplinary record will not be set forth as a current reason but will be stated in a paragraph separate and apart from the current reasons. In order for past disciplinary action to be cited, the employee must have been informed of the action in writing and must have been given the opportunity to challenge the action to an authority higher than the one that took the action, and the action must have been made a matter of official record. If the above three criteria cannot be met, the reference to an employee's past record must be specific enough to offer the employee a fair opportunity to refute the reasons. Previous disciplinary actions that have expired (e.g., a letter of warning issued more than 1 year ago or a letter of reprimand issued more than 2 years ago) may not be considered as part of the basis for the proposed penalty;
(5) Notice of right to review the materials on which the proposed action is based and/or receive a copy of the evidence file, and whom and where to contact regarding such review and/or a copy. The servicing personnel office will maintain the original evidence file. Information that cannot be provided to the employee will not be relied on to support the action;
(6) Notice of a reasonable period of time, but not less than 24 hours, in which to respond orally and/or in writing to the reasons for the proposed action and to furnish affidavits and other documentary evidence in support of the answers. The notice will include the name and address, including telephone number, of the supervisory official who will make the decision on the proposal so that the employee may submit any written response and/or make arrangements for an oral reply. If the deciding official is not available to hear the oral reply, he/she will designate an employee to hear the oral reply and recommend a decision to him/her. The name and role of an employee designated for this purpose will be included in the proposal notice. At a minimum, the deciding official or his/her designee must document the oral reply in a written summary (See 2.34 and 2.35 for guidance on oral/written replies.);
(7) The employee's right to be represented by an attorney or other representative. However, the notice will state that the employee's representative may be disallowed if the individual's activities as a representative could cause a conflict of interest or position, would give rise to unreasonable costs to the Government, or would conflict with priority work assignments;
(8) A statement that the action is being proposed to promote the efficiency of the Federal Service;
(9) A general statement of referral of the employee to the Employee Assistance Program for any personal problems that may be contributing to or causing the conduct and/or performance deficiency, and/or to bring forward medical documentation of a medical condition that might be relevant to the work problems (See 227 FW 4 for further guidance on the EAP.); and
(10) A signature and date line for the employee's acknowledgement of receipt of the proposal.
C. Following careful consideration of the employee's responses or after expiration of the time period for the employee to respond to the proposal if the employee fails to make a reply, and subsequent to a complete review of all relevant material pertaining to the proposal, a written decision on the proposed suspension will be rendered by the deciding official. The decision notice will be in the form of an official letter or memorandum; be issued as soon as is practicable, but must be delivered not less than 24 hours prior to the effective date. The decision notice must contain the following:
(1) Reference to the notice of proposed suspension citing the date of the notice;
(2) The specific reasons that serve as the basis for the decision reached. If the deciding official relies on all the reasons stated in the proposal in reaching a decision, it is not necessary to repeat them in the decision notice. A direct reference to the charges found sustained is sufficient. Only reasons that were included in the proposal notice may be used to support the decision. If management wants to consider reasons that were not included in the proposal notice, the original proposal must be withdrawn and a new one issued;
(3) Acknowledgement of any written or oral reply by the employee and that it received full consideration. If the employee made no reply, that fact must also be addressed. Though not required, it is strongly recommended that the employee's oral/written response be formally addressed in the decision notice;
(4) Consideration of applicable mitigating and aggravating factors and the weight given the factors in arriving at the penalty. An action that discusses mitigating and aggravating factors used to arrive at the decision may be entitled to more weight by a third party upon review than one that does not indicate this type of consideration in penalty selection;
(5) The type of penalty imposed and the inclusive dates if the penalty is a suspension;
(6) A statement that such action is warranted to promote the efficiency of the Federal Service;
(7) A statement that failure to correct the misconduct and/or poor performance or further instances of unsatisfactory conduct/performance may result in more severe disciplinary action up to and including removal from the Federal Service;
(8) Notification of the employee's right to contest the action under the Service Grievance Procedures (227 FW 3) or a negotiated grievance procedure, if applicable; and
(9) A signature and date line for the employee's acknowledgement of receipt of the decision.
2.13 Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, and Furlough for 30 Days or Less. Most adverse actions taken under this section are based on instances of employee misconduct and/or poor performance. (See 2.24 for additional guidance on taking action under this chapter based on performance.) However, there are numerous other legal bases for taking adverse actions that are nondisciplinary. Employees terminated for nondisciplinary reasons may qualify for discontinued service retirement or disability retirement. (See FPM Supplement 830-1 for guidance on retirement.) The law (5 U.S.C. 7513(a)) stipulates that actions taken under this section must be only for "such cause as will promote the efficiency of the service." In order to meet the cause standard, an adverse action taken under this section must meet four basic criteria. First, management must clearly specify the charges or reasons upon which the action is based. Second, it must be able to prove the specific reasons or charges that form the basis for its action by a preponderance of the evidence. Third, it must then be able to show the connection or "nexus" between the charges and promotion of the efficiency of the service. Finally, it must be able to show that the disciplinary or nondisciplinary penalty chosen was appropriate under the circumstances.
A. Removal for Disciplinary Reasons. Removal for disciplinary reasons is an involuntary separation taken for very serious misconduct and/or performance deficiencies, or for continued or repeated acts of misconduct/poor performance of a less serious nature when previous disciplinary methods would not induce correction.
B.Suspension for More Than 14 Days. A suspension for more than 14 days is an enforced, temporary nonpay status and absence from duty. Such action is taken for serious misconduct and/or performance deficiencies. It may also be taken for continued or repeated acts of misconduct of a significant nature that appear to be blatant disregard of requirements, or for emergency reasons as described in 2.20 of this chapter.
C. Demotion for Disciplinary Reasons. A reduction in grade or pay imposed for disciplinary reasons can be used under certain circumstances. For example, misuse of supervisory authority might be grounds for demotion to a nonsupervisory position. In addition to reductions in grade for personal cause, this adverse action category includes reductions that result from classification decisions if the employee does not qualify for grade retention. (See FPM Chapter 536 for more information about the criteria for grade retention.) Reductions that do not affect the rate of basic pay, such as the reduction in hours of a part-time employee, the loss of night differential pay, or a reduction in rank are not adverse actions.
D. Furlough of 30 Days or Less. Furlough means the placing of an employee in a temporary status without duties or pay because of lack of work or funds or other nondisciplinary reasons. Furloughs for more than 30 days are reduction in force actions covered by 5 CFR Part 351.
E. Demotion or Separation for Nondisciplinary Reasons. An action may be nondisciplinary but at the same time adverse to the employee. For example, the removal of an employee because of refusal to accompany his or her activity to a new location is an adverse action even though no disciplinary factor may be involved. Separation due to disability whether or not an employee is eligible for disability retirement is another example of an adverse action taken that did not result from a disciplinary situation.
F. Employees Covered. The following employees are covered by the provisions of 2.13:
(1) An employee in the competitive service who has completed a probationary or trial period;
(2) An employee in the competitive service serving in an appointment that requires no probationary or trial period, and who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;
(3) An employee in the excepted service who is a preference eligible and who has completed 1 year of current continuous employment in the same or similar positions;
(4) An employee in the excepted service who is a nonpreference eligible and who has completed 2 years of current continuous service in the same or similar positions under other than a temporary appointment limited to 2 years or less;
(5) An employee with competitive status who occupies a position in Schedule B of 5 CFR Part 213; and
(6) An employee who was in the competitive service at the time his/her position was first listed under Schedule A, B, or C of the excepted service and still occupies that position.
G. Employees Not Covered. The provisions contained in this section do not apply to the following employees:
(1) An individual appointed by the President;
(2) An employee in a Schedule C appointment;
(3) An employee in a statutorily excepted position that has been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character by the President or the head of an agency; and
(4) A reemployed annuitant.
(5) A nonpreference eligible employee serving a probationary or trial period under an initial appointment in the excepted service pending conversion to the competitive service.
H. Advance Notice of Proposed Adverse Action. An employee against whom an adverse action under this section is initiated is entitled to receive a 30-day advance written proposal notice. The two exceptions to the 30 day advance written proposal notice requirement are when the crime provision is invoked and when an emergency furlough is necessary. In computing the length of the notice period, the day on which the notice is delivered is not counted since it is not a full calendar day. The last day of the notice period is counted; however, when the last day of the notice period falls on a Saturday, Sunday, or legal holiday, the action may be effected no earlier than the next business day. The advance written proposal notice will be in the form of an official letter or memorandum and must contain the following:
(1) Proper identification of the employee (e.g., name, position title, pay plan, series, grade, and organizational location);
(2) The specific action proposed. If the action proposed is a suspension or furlough, the exact number of calendar days should be specified. If a reduction in grade, the positions from and to which the employee is being moved must be clearly identified. If a removal, it should be clear that the removal is from the Federal Service, not just the position;
(3) The specific reasons for the proposed action, including any Service/Departmental/Federal rules or regulations that have been violated. The law requires that the specific reasons for a proposed adverse action be stated so that the employee fully understands why the action is proposed and may respond adequately. A good method of determining whether a proposal meets this requirement is by asking the following questions: Does the proposal tell the employee specifically what he/she did or supposedly did or failed to do? When and where did the action supposedly occur? Who else, if anyone, was involved? (See 2.18, Describing the Charges, for assistance in determining or writing the reasons.);
(4) A "cause" for the proposed action (e.g., a recognizable and current offense against the employer-employee relationship -- nexus) (See 2.16 for additional information regarding nexus.);
(5) A statement that the employee will be given at least 30 days from the date following the date of receipt of the proposal before the action, if taken, is effective;
(6) Any aggravating/mitigating factors considered in arriving at the proposed penalty (See 2.17 for specific guidance on Douglas Factors.) Itemizing and relating aggravating/mitigating factors to the selection of proposed action will give the employee the full benefit of management's reasoning and provide a better basis for the employee's written and/or oral answer. It will also aid third parties in reviewing the case on appeal.
When an employee's past disciplinary record is to be considered as part of the basis for the proposed penalty, a statement must be included that specifically cites and identifies the previous infractions and penalties. If cited, the previous disciplinary record will not be set forth as a current reason but will be stated in a paragraph separate and apart from the current reasons. In order for past disciplinary action to be cited, the employee must have been informed of the action in writing and must have been given the opportunity to challenge the action to an authority higher than the one that took the action, and the action must have been made a matter of official record. If the above three criteria cannot be met, the reference to an employee's past record must be specific enough to offer the employee a fair opportunity to refute the reasons. Previous disciplinary action that have expired (e.g., a letter of warning issued more than 1 year ago or a letter of reprimand issued more than 2 years ago may not be considered as part of the basis for the proposed penalty;
(7) The employee's right to be represented by an attorney or other representative. The notice must state that the employee's representative may be disallowed if the individual's activities as a representative could cause a conflict of interest or position, would give rise to unreasonable costs to the Government, or would conflict with priority work assignments;
(8) The employee's right to review the material on which the proposal is based and/or receive a copy of the evidence file, and whom and where to contact regarding such review and/or a copy. The servicing personnel office will maintain the original evidence file. Information that cannot be provided to the employee will not be relied on to support the action;
(9) The employee's right to answer both orally and in writing and to submit affidavits and other documentary evidence in reply to the advance notice, and a reasonable amount of time allowed for the replies but not less than 7 days. The notice will state that an extension of the time limit to respond will be considered if the employee provides a good reason for the request, and will specify whom to contact regarding such an extension;
(10) A statement that the employee, but not the employee's representative, will be allowed a specific amount of official time for reviewing the evidence, preparing a reply, securing affidavits or other documentary evidence, and presenting a reply. The time to be allowed will depend upon the circumstances in each case. The notice will also contain a statement that consideration will be given to any request for additional time beyond that decided, and whom to contact to arrange for the use of official time;
(11) The name and address, including telephone number, of the deciding official to whom to submit any written response and/or make arrangements for an oral reply. If the deciding official is not available to hear the oral reply, he/she will designate an employee to hear the oral reply and recommend a decision to him/her. The name and role of an employee designated for this purpose will be included in the proposal notice. At a minimum, the deciding official or his/her designee must document the oral reply in a written summary. (See 2.34 and 2.35 for guidance on oral/written replies.);
(12) A statement that careful consideration will be given to the employee's replies if made, and that the employee will be given a written decision as soon as practicable after such consideration is made or after the reply period has ended if the employee fails to make a reply;
(13) The employee's duty status during the notice period (See 2.15 for information on employee duty status during the advance notice period.);
(14) A statement that if the employee does not understand the reasons for the proposed action, he/she may contact the proposing official for further explanation. Only those matters used as the basis for the proposed adverse action should be discussed by that official;
(15) The individual to contact in the employee's servicing personnel office concerning procedural aspects and regulations regarding the proposed action. That individual should discuss only those matters pertinent to the proposed action;
(16) A statement that the action is being proposed to promote the efficiency of the Federal Service;
(17) A general statement of referral of the employee to the Employee Assistance Program for any personal problems that may be contributing to or causing the conduct and/or performance deficiency, and/or to bring forward medical documentation of a medical condition that might be relevant to the work problems (See 227 FW 4 for further guidance on the EAP.); and
(18) A signature and date line for the employee's acknowledgement of receipt of the proposal.
I. Decision Notice on Proposed Action. The decision notice must be given to the employee at least 24 hours prior to the time the action becomes effective. By law (5 U.S.C. 7513(b)(4)), the employee is entitled to a written decision at the earliest practical date. Separation actions such as removals automatically become effective at 12 midnight, the end of a calendar day. All other adverse actions short of separation become effective at 12:01 a.m., the beginning of the day, unless a different time is set. A decision may not be effected until after the advance written notice period has expired. The decision notice will be in the form of an official letter or memorandum and must contain the following:
(1) Reference to the notice of proposed suspension citing the date of the notice;
(2) A statement that full consideration has been given to all evidence developed, including the employee's replies. If the employee made no response, that fact must also be addressed. Though not required, it is strongly recommended that the employee's oral/written response be formally addressed in the decision notice;
(3) A statement specifically describing what reasons in the advance notice were found to be sustained and what reasons, if any, were dropped as not sufficiently supported. Where the reasons are stated with sufficient specificity in the proposal notice, and the deciding official relies on all of the reasons in reaching a decision, it is not necessary to repeat them in the decision notice in order to satisfy the requirement that the specific instances of misconduct/deficient performance be stated. A direct reference to the charges found sustained is sufficient;
(4) Consideration of applicable mitigating and aggravating factors and the weight given the factors in arriving at the penalty. Under case law established in Douglas v. Veterans Administration, an action that discusses mitigating and aggravating factors used to arrive at the decision may be entitled to more weight by a third party upon review than one that does not indicate this type of consideration in penalty selection;
(5) The type of penalty imposed and the effective date or the inclusive dates if the penalty is a suspension. The penalty may not be more severe than that stated in the notice of proposed action, but it may be less severe. If none of the reasons can be sustained, no penalty may be imposed. If the notice of proposed adverse action is procedurally defective, or if it is found that additional reasons should be considered or that a more severe penalty would be appropriate, a new notice of proposed action must be issued. The new notice must include a new advance notice period and another opportunity to reply both orally and in writing. A procedural error is considered to render the notice defective only when such error is demonstrated to be harmful to the defense of the employee. (See 2.25 for information regarding harmful error.);
(6) A statement that the action is warranted to promote the efficiency of the Federal Service;
(7) Notice of the employee's appeal or grievance rights, including notice of the time limits for appealing to the MSPB, the address of the appropriate MSPB office for filing an appeal, a copy of MSPB's regulations, a copy of MSPB's appeals form, and notice of any rights the employee has to file a grievance (See 5 CFR Part 1201 for information on appeals to MSPB.); and
(8) A signature and date line for the employee's acknowledgement of receipt of the decision notice.
2.14 Method of Delivery. If the employee is in an active duty status,
and the employee and the supervisory official responsible for the
disciplinary/adverse action are located within the same geographical location,
the supervisor must personally present the proposal/decision notice to the
employee and request that a copy be signed and dated to acknowledge receipt.
Should the employee refuse to sign the acknowledgement copy, the supervisory
official will note on the notice the time and date of delivery, the employee's
refusal to sign, and sign and date it himself/herself. Otherwise, the notice
must be sent to the employee two ways -- by regular first class mail and by
certified mail, return receipt requested, for delivery to the addressee only.
If the certified mail cannot be delivered to the employee, first class mail can
be presumed delivered to the addressee if not returned within a reasonable
time. Both MSPB and the courts have found that such delivery is acceptable and
shows due diligence. When a notice is sent through the mail, the individual
sending the correspondence should prepare and sign a certificate of service
showing the date and by what mail route the notice was sent. Additionally, a
copy of the addressed envelope sent by regular first class mail must be retained.
2.15 Employee Status During Advance Notice Period. Under ordinary circumstances, an employee whose removal or suspension, including indefinite suspension, has been proposed will remain in a duty status in his/her regular position during the advance notice period. In those rare circumstances where it is determined that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, one or a combination of the following alternatives may be elected:
A. Assigning the employee to duties where he/she is no longer a threat to safety, the Service mission, or to Government property;
B. Allowing the employee to take leave, or carrying him/her in an appropriate leave status (annual, sick, leave without pay, or absence without leave) if the employee has absented himself/herself from the worksite without requesting leave (See 2.23 on Enforced Leave);
C. Curtailing the notice period when the crime provision can be invoked. This provision may be invoked even in the absence of judicial action if there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed. (See 2.19 for more information on actions based on possible criminal conduct); or
D. Placing the employee in a paid, nonduty status for such time as is necessary to effect the action.
2.16 Relationship Between the Reasons for Action and the Ability of the Service to Discharge its Responsibilities (Nexus). Reasons cited as a basis for taking action under this chapter must have some impact on the efficiency of Government operations (e.g., conduct/performance that adversely affects the ability of the employee to perform his/her job responsibilities or the ability of the Service to carry out its mission in a satisfactory manner), otherwise known as the "nexus." There are several ways in which nexus may be established. The following are discussions of some of the circumstances that can result in the establishment of nexus.
A. The Charged Misconduct is Directly Related to the Employee's Performance of His/Her Duties. Most disciplinary/adverse actions taken are based on acts of misconduct that directly affect the employee's and/or fellow workers' performance of duties and responsibilities. These actions may include an employee's physical or mental inability to perform the duties of his/her position; insubordination; leave abuse; fighting on the job; or dishonesty in providing official information.
B. Egregious Misconduct That Leads to the Presumption of Nexus. Certain types of misconduct (on or off duty) may be so serious and egregious that they cast doubt on the employee's reliability and trustworthiness, diminish public respect for the Service, create compelling safety and/or security concerns, and/or adversely affect the employee's ability to work with other employees. Consequently, they establish a presumed connection between the acts of misconduct and the efficiency of the Service, even though there may not be a readily apparent or direct impact on the satisfactory performance of the employee's job duties and responsibilities. Varieties of misconduct that may raise this type of presumption include shootings, killings, assaults, serious and believable threats, illegal drug offenses, sexual misconduct (particularly child molestation or abuse), falsification of employment forms and documents, and major incidents of fraud or theft. Even when a presumed nexus is established in thse cases, the employee may be able to rebut the presumption presenting further information or evidence that shows, for example, a lack of public awareness of the offense, that fellow employees were not concerned, that supervisors continued to trust him or her, or that he or she has continued to do the job satisfactorily despite the misconduct at issue.
C. Misconduct That Has a Direct Connection to the Agency's Mission. Some misconduct, by its very nature, is so inconsistent with or opposed to an agency's basic mission, goals, or objectives that it results in a serious diminishing of public trust, confidence, or respect for the agency, and establishes the requisite nexus even though it may not directly affect the individual's performance of assigned duties and responsibilities. An example of such misconduct includes a Service employee trading in endangered species.
2.17 Factors to Consider in Selecting a Penalty. In selecting a penalty, management should take into account all of the specific circumstances of the case. While equitable and uniform treatment of employees who commit similar offenses (under like circumstances) is preferable when possible, mechanistic consistency is not recommended or required. In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the MSPB specified 12 factors that should be considered when selecting penalties. Hence, management must carefully consider these "Douglas Factors" and any other factors that may be relevant in the particular case when choosing a disciplinary or adverse action. Not all of the Douglas Factors will be pertinent in every case. Some may weigh in the employee's favor while others will be considered aggravating. However, the penalty may be questioned if there are relevant issues that are not considered. (See Appendix 1, Part B, for a description of factors to consider in selecting a penalty.)
2.18 Describing the Charges. Care must be exercised when determining how to describe or characterize each reason for action. It is important to clearly show whether the charged offense is a first, second, or third offense. This is especially important due to the Service's Disciplinary Action Guide (Appendix 1, Part A) under which the nature of the offense and the number of occurrences of the same or other misconduct are used to determine the appropriate range of penalties. Furthermore, the specific wording of the charge must be chosen carefully as it determines what must be proven. For instance, if the reason or charge in the proposal imply intent or reckless disregard, or have a specific legal meaning, then the intent must be proven or every specific element of the legal definition met. For example, it may be easier to prove that someone took Government property for his/her own use than to prove "embezzlement," which is a criminal charge with a legal definition. Additionally, it may be easier to prove failure to follow an order than "insubordination" that implies intent. Also, when sexual harassment is the charge, it is important to show whether the employee is being charged under agency policy or under the Equal Employment Opportunity Commission regulations that implement Title VII and raise very specific and sometimes difficult burdens of proof.
Finally, consideration should be given to framing separate instances or reasons as separate charges because should the instances or reasons be framed as specifications of a single charge, a third party's decision that any one cannot be sustained may cause the whole charge to fail.
2.19 Actions Based on Possible Criminal Misconduct. When it is necessary to initiate a removal or suspension of more than 14 days against an employee based on criminal misconduct, the employee need not be given the normal full 30 days advance written notice if there is reasonable cause to believe the employee is guilty of a crime (either off or on the job) for which a sentence of imprisonment may be imposed. The shortened notice period must, at a minimum, be 7 days. This would apply in situations where the crime can readily be referenced in an appropriate statute or penal code and some sound evidence (e.g., sworn statements of witnesses, court or indictment records, or employee admission) strongly suggest a violation has occurred. The employee must be given a reasonable opportunity to reply to the proposed action and all other requirements for taking an adverse action must be met. Additionally, the advance notice of proposed action must advise the employee of the reasons for the shortened notice period.
2.20 Indefinite Suspension. An indefinite suspension is the placing of an employee in a temporary status without duties and pay pending investigation, inquiry, or further agency action. The indefinite suspension continues for an indeterminate period of time and ends with the occurrence of the pending conditions set forth in the notice of action which may include the completion of any subsequent administrative action. The components that define a properly taken indefinite suspension are described as follows:
A. The employee must be placed in a nonduty, nonpay status against his/her will;
B. The action must be taken for disciplinary reasons. A suspension is disciplinary in nature if its purpose is to maintain the orderly working of the Government against possible disruption;
C. There must be a legitimate interest in keeping the employee away from the worksite during an indeterminate period of inquiry or investigation; and
D. The employee must be provided with a written definition of the conditions that will bring the suspension to an end. It is recommended, in most cases, that such written notice states that the suspension will run until the inquiry or investigation is completed and any further legal or administrative action deemed necessary is taken. This wording allows some time to determine a proper course of action after the end of an inquiry. For example, if a decision is made to take an adverse action upon completion of the inquiry, the suspension may run through the notice period of the adverse action and continue until the action is either taken, or the deciding official decides it is unwarranted and returns the employee to duty.
2.21 Alternatives to Indefinite Suspension. The use of indefinite suspensions should be limited to situations where it is determined that there is no reasonable alternative to keeping the employee away from the worksite. Reasonable alternatives that may better meet the needs of management and the Service are as follows:
A.Allow the Employee to Continue in His/Her Position. Unless specific risks associated with allowing the employee to continue performing normal duties during the period of inquiry can be described and proved with concrete and credible evidence, it is unwise to proceed with an indefinite suspension. In making this assessment, consideration should be given to the nature of the employee's duties and responsibilities, including physical requirements and contacts with coworkers and the public; the Service's mission and/or the mission of the position as it relates to the circumstances under investigation; and the willingness of the employee to cooperate in resolving the problem (e.g., by submitting needed medical information, seeking appropriate treatment or examination, or cooperating with investigators);
B. The Employee May be Willing to Take Leave or Accept Alternate Assignments During the Period of Investigation or Inquiry. Consideration will be given to the availability of positions or duties that do not involve safety, health, security, or other serious risks to which the employee can be assigned temporarily pending the completion of the inquiry or investigation;
C. The Employee May be Placed in Paid Nonduty Status if the Period of Inquiry Will be Relatively Brief. The use of excused absence will accomplish the purpose of keeping the employee away from the workplace and is appropriate for brief periods of time (e.g., approximately 6 weeks or less); or
D. A Decision May be Made to Take an Administrative Action Based on the Circumstances Themselves, Such as Medical Inability to Perform or Criminal Misconduct. Because the purpose of an indefinite suspension is to keep the employee away from work pending the outcome of an ongoing inquiry, its use is not appropriate if sufficient information exists to proceed with an administrative action without further inquiry. The exception is when delay may be necessary because the employee is facing unresolved criminal charges for the same act that forms the basis of the proposed action.
2.22 Situations That May Justify Use of an Indefinite Suspension. The following are examples of situations that could justify an indefinite suspension:
A. Evidence That the Employee is Likely Guilty of Criminal Misconduct Causes Management to Conclude That the Employee Should be Kept Away From the Workplace. Third parties have generally found that circumstances that support the use of a shortened notice period will also support imposition of an indefinite suspension pending a full examination of the alleged criminal misconduct. It is important to emphasize that the indefinite suspension is not based on the alleged misconduct itself, but on the need to conduct further inquiry or to allow completion of criminal proceedings before taking further action;
B. The Employee May be Engaging in Repeated Instances of Highly Irrational, Bizarre, Disruptive, and/or Threatening Behavior; or
C. An Employee Whose Position Requires a Security Clearance May Have That Clearance Suspended Pending Further Adjudication. An indefinite suspension may be proper under these circumstances if it can be proved that the employee's position requires a security clearance, the employee's security access has been suspended, and that the indefinite suspension has been imposed because of the security access suspension pending a decision to officially revoke or restore access.
2.23 Enforced Leave. Enforced leave is annual leave, sick leave, or leave without pay that the employer requires the employee to take against his/her will because the employee is not ready, willing, or able to perform his/her duties and responsibilities. Enforced leave is most often set for an indefinite period, dependent on some condition, such as the employee's recovery or the receipt of complete medical information and a subsequent administrative decision. When such leave is necessary, it is considered a constructive suspension, and the procedural guidance contained in this chapter for suspensions applies.
2.24 Performance-Based Actions Taken Under 5 CFR Part 752. The provisions contained in 224 FW 2 are available and generally used to take reduction in grade and removal actions based on unacceptable performance for employees covered by the Performance Management System, and below fully successful performance for employees in the Performance Management and Recognition System. Actions based upon deficient performance may also be taken under the provisions of this chapter if management is able to meet the evidentiary, procedural, and other requirements discussed herein.
The U.S. Court of Appeals for the Federal Circuit in Lovshin v. Department of Navy, 767 F.2d 826 (1985), has ruled that agencies must comply with merit system principles 5 U.S.C. 2301(b)(6) and (7) when taking performance-based action under this chapter. 5 U.S.C. 2301(b)(6) states that employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. 5 U.S.C. 2301(b)(7) states that employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. The Court ruled that violation of the merit system principles (a prohibited personnel practice under 5 U.S.C. 2302(b)(11)) was made a specific defense to adverse action and warned that an employee's defense of a prohibited personnel practice in a performance-based action taken under the authority contained herein is a "substantive one, not merely procedural."
Accordingly, management may not take a disciplinary/adverse action that relies solely on performance that meets the employee's performance standards as this would be an abuse of merit principles. Additionally, when the provisions of this chapter are used to take action for performance reasons, management must still demonstrate that it has put the employee on notice of deficiencies and provided reasonable assistance, where feasible, as is required under 224 FW 2. While management need not provide a formal opportunity to improve under this chapter, third parties will consider the lack of an improvement period as a factor bearing on the appropriateness of the penalty chosen. However, management may be able to show that there was no available training or assistance that would have corrected the deficiency (e.g., if the performance deficiency is based on medical problems or if the employee has already received substantial amounts of training and assistance in the position).
Management must keep records of any counseling sessions, memoranda to the employee, and other efforts made on the employee's behalf, such as notification of performance deficiencies and any attempts to correct the performance. Management must also keep records of any factors considered in deciding which penalty to propose. Doing so will help the Service defend against an appellant's allegation of prohibited personnel practice based on a violation of 5 U.S.C. 2301(b)(6) and/or (7), justify the appropriateness of its penalty, and establish that its action promoted the efficiency of the Service.
Represented below are some of the situations where it may be preferred to use this chapter for actions based on performance reasons.
A. The Performance Deficiency is Based on a Medical Condition. When an employee's deficient performance results from a serious physical or mental condition, a formal opportunity to improve performance required under 224 FW 2 cannot serve the intended purpose and may pose risks for the employee and/or the Service;
B. The Unsatisfactory Performance is Related to Conduct. Using the procedures contained herein may be more appropriate when the employee's performance failure is tied to conduct reasons, such as refusal to work, carelessness, negligence, or leave problems;
C. Management Has Separate Charges Related to Both Conduct and Performance That it Wants to Address in a Single Action. In this case, management has the option of taking both actions under the provisions of this chapter or taking action on the performance under 224 FW 2, and addressing the conduct under the provisions contained in this chapter, with full adherence to the requirements of each chapter;
D. The Position Has Already Afforded the Employee All of the Characteristics of a Formal Opportunity to Improve. When employees fail in apprentice programs, for example, they are most often separated through adverse action procedures since such programs inherently consist of the structured assignments, training, and other assistance normally provided through a formal opportunity to improve period required under 224 FW 2. Management may consider it neither practical nor helpful in such a case to construct a performance improvement period that can only duplicate the opportunities the employee has already been provided;
E. There are Unacceptable Risks Attached to Allowing the Employee to Continue Performance of His/Her Duties Through an Opportunity to Improve. This situation primarily arises when the employee's duties have a direct and serious relationship to the health and/or safety of others. If the nature of the performance deficiency is such that others could be harmed by further errors, an opportunity to improve may be inappropriate.
2.25 Harmful Error. In taking adverse action and providing the employee minimum due process, any errors committed in so doing will be subjected to the "harmful error" analysis. Harmful error is defined by regulation as "Error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is on the appellant to show that the error was harmful, e.g., that it caused substantial harm or prejudice to his/her rights" (5 CFR 1201.56(c)(3)). Errors such as failure to provide an employee clear written notice of the reasons for the proposed action and failure to provide a full opportunity to respond to the proposed action are particularly serious because they can change the outcome of agency proceedings. However, it has been found that most errors made by agencies do not result in reversal of their action because there is no finding that the errors prejudiced the outcome of the case. While every effort should be made to avoid errors in these sensitive actions, an appropriate action should not necessarily be abandoned because an actual or possible procedural flaw has been discovered.
2.26 Dual Penalties. Dual penalties for misconduct and/or performance deficiencies may be appropriate under certain circumstances, e.g., suspension and demotion. As with other penalty selections, when assessing whether to impose dual penalties, careful consideration must be given to the nature and seriousness of the employee's previous disciplinary record; whether the penalties fall within tolerable limits of reasonableness under the Douglas Factors, the Service Disciplinary Action Guide, and other pertinent guidance; and whether, overall, the actions are being taken for such cause as would promote the efficiency of the Service. Third parties have upheld dual penalties under certain circumstances and the MSPB has mitigated removals to dual penalties in a number of cases. Additionally, although not an adverse action in and of itself, third parties will examine a reassignment as a penalty if it is taken in conjunction with another penalty, such as suspension or demotion when both actions are taken for the same reason.
2.27 Consideration of Medical Documentation. An employee who raises a medical condition in connection with a conduct/performance deficiency must be given a reasonable time in which to submit medical documentation to substantiate his/her claim. The initial burden to raise a medical issue is with the employee. However, as stated in the Service Employee Assistance Program Chapter (227 FW 4), and as required by this chapter when initiating a disciplinary/adverse action against an employee, supervisors are responsible for making a general statement that if the employee believes a medical condition is contributing to the performance or conduct problem, he or she is encouraged to seek assistance through the Employee Assistance Program. As a means of obtaining needed medical information, consideration may be given to offering or ordering an examination, depending on the nature of the position, under the criteria of 5 CFR 339.302 and FPM Chapter 339. Under 5 CFR 752.404(c)(3), if the employee meets the applicable service requirements for disability retirement under the Civil Service Retirement System (5 years) or the Federal Employees Retirement System (18 months), the employee must be provided information concerning disability retirement, including the strict 1-year time limit for application. Such information should be provided either before issuing its decision or in the decision itself. (See FPM Supplement 830-1, Chapter 60 for more information on the conditions of disability retirement.) Management must also be aware of its affirmative obligations under 29 CFR 1613.704 that requires reasonable accommodation of a qualified handicapped employee. (Refer to 2.28 below for information on handicapped employees.)
2.28 Determining Whether an Employee is Handicapped. The Equal Employment Opportunity Commission (EEOC) has defined a handicapped person by regulations in 29 CFR 1613.702(a) as "one who: (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities (including working), (2) has a record of such impairment, or (3) is regarded as having such an impairment." Employees are entitled to reasonable accommodation if they meet this definition and demonstrate that they are "qualified handicapped persons." 29 CFR 1613.702(f) defines a qualified handicapped person as one "who, with or without reasonable accommodation, can perform the essential functions of the position without endangering the health and safety of the individual or others . . .." (Refer to 2.29 below for information on reasonable accommodation.)
2.29 Reasonable Accommodation. 29 CFR 1613.704 defines agencies' obligations to provide reasonable accommodation to qualified handicapped employees as follows: "An agency shall provide reasonable accommodation to the known physical or mental limitations of a qualified handicapped employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program." The regulation goes on to provide examples of forms that reasonable accommodation may take. These examples have been supplemented by case law that provides that reassignment must be considered as an accommodation. The regulations also define the factors that must be considered in determining that an accommodation "would impose an undue hardship."
2.30 Alcohol Dependency as a Contributing Factor to Misconduct/Performance. Employees handicapped by alcoholism must be provided a "firm choice" between accepting an offer of rehabilitation or otherwise facing corrective personnel action up to and including removal. Supervisors will consult with the employees' servicing personnel office regarding the "firm choice" requirement. Last chance and abeyance instruments can serve to provide employees with the required "firm choice" and may be the only way to get employees into treatment and rehabilitative efforts. (See 2.31 below for information on last chance and abeyance instruments.)
2.31 Last Chance and Abeyance Instruments. A last chance or abeyance instrument is a means of affording an employee a final opportunity to become a productive and dependable employee before proceeding with a proposed/final disciplinary/adverse action. Last chance and abeyance instruments can offer certain advantages over conventional ways of proceeding with a disciplinary case. They place both the Service and the employee in a potential win/win situation if the employee corrects his/her deficiency. They also serve to document a well established employee relations case should the employee fail to correct the problem and it be necessary to proceed with a disciplinary/adverse action. Additionally, they document reasonable accommodation efforts, help the employee to acknowledge his/her deficiency, and offer a firm choice between rehabilitation and formal action. Although most commonly used in substance abuse issues, last chance and abeyance instruments may be utilized in other conduct situations and may also prove beneficial with performance cases. The MSPB, the EEOC, and the courts have affirmed the principle of abeyance instruments, either unilateral agency decisions to hold actions in abeyance or bilateral last chance agreements entered into by employees and agencies. If employees raise substance dependence as an affirmative defense in a reply to an adverse action proposal, management officials may choose to offer a last chance agreement before making their decisions. More commonly, managers make their decisions on the proposals but put the decided actions in abeyance. If managers have placed actions in abeyance, given employees a reasonable time for rehabilitation efforts, and the employees fail to meet one or more of the required conditions (e.g., acceptable performance, conduct, leave, or participation in required rehabilitation programs), MSPB, EEOC, and the courts have held that the original action may be reinstated without issuing a new proposal notice or giving other procedural rights. The MSPB and the Federal Circuit Court of Appeals have affirmed the waiver of appeal rights by employees as part of the terms of a last chance agreement. The EEOC, however, has held that it is invalid as against public policy to waive prospective EEO rights in an otherwise valid release or agreement. (See Exhibit 1 for a sample of a last chance/abeyance document.)
2.32 Illegal Drug Use. The Departmental Manual, 370 DM 792,10, Drug Testing Procedures, mandates that employees found to be using illegal drugs shall be referred to the Employee Assistance Program for assessment, counseling, and referral for treatment or rehabilitation, as appropriate. Should employees refuse to obtain counseling or rehabilitation through the EAP after having been found to use illegal drugs, supervisors will initiate action to remove them from the Federal Service. A disciplinary/adverse action shall be initiated against employees found to use illegal drugs provided that such action is not required for employees who voluntarily admit to illegal drug use (prior to employee notification of a scheduled drug test, or the discovery of illegal drug use through other means such as a positive drug test result, direct observation, or evidence resulting from an arrest or criminal conviction), obtain counseling or rehabilitation and, thereafter, refrain from using illegal drugs. Supervisors will consult with the employees' servicing personnel office for technical assistance regarding mandatory EAP referral and possible disciplinary/adverse action as stipulated by Departmental regulations.
2.33 Americans With Disabilities Act. The Americans With Disabilities Act, effective July 26, 1990, has amended the Rehabilitation Act of 1973 to provide that current users of illegal drugs are not handicapped persons for the purposes of the Act. Employees who are no longer using drugs and have successfully completed or are completing a rehabilitation program are not "current users" under this legislation.
2.34 Written Reply. While there is no requirement that a written reply be in affidavit form or under oath, employees may submit a reply in this manner. A written reply may also be accompanied by affidavits and any additional documents or written statements deemed relevant and material by employees. A written reply and its attachments will be addressed to the deciding official and made part of the disciplinary/adverse action case file.
2.35 Oral Reply. Employees are entitled to reply personally to the reasons contained in a notice of proposed adverse action. This entitlement exists in addition to the right to submit a written reply. The personal or oral reply is not an adversary or evidentiary hearing. It does not permit the presentation or cross examination of witnesses, nor does it present an opportunity for employees to confront their accusers. The oral reply simply provides an employee with an appropriate forum to present an uninhibited oral defense, including a denial of the reasons for the proposed action, a presentation of any mitigating circumstances, and/or a plea for less severe action.
The primary function of the official to whom the oral reply is presented is to listen, encourage an open and frank presentation, and conduct an orderly proceeding. Any appearance or inference of an adversarial proceeding must be avoided. Questions to the employee making the oral reply should be framed to elicit information and should not appear either to accuse or to confront the employee. The official hearing the reply should not attempt to justify the reasons or charges contained in the notice of proposed adverse action and avoid any inference during the proceeding that a decision has been reached on the proposal.
Attendance at the oral reply will normally be limited to the employee, the employee's representative, the official hearing the oral reply, and a technical advisor (normally a technical expert from the employee's servicing personnel office). There must be a record of the oral reply proceeding. This record can be made by a verbatim transcript or a summary of the proceeding. Once the verbatim transcript or the summary of the oral reply has been prepared, the oral reply official or the technical advisor will transmit a copy to the employee or the employee's representative for corroboration of its content and accuracy.
2.36 Notification of Appealed Actions to the MSPB or Through a Negotiated Grievance Procedure. Upon notification that an employee has appealed an action taken under this chapter to the MSPB or through a negotiated grievance procedure, the servicing personnel officer will advise the Chief, Division of Personnel Management. Such notification will be made by submission of a memorandum specifying the action taken, the reasons for the action, the effective date of the action, and the date the action was appealed, if known. The servicing personnel officer will also advise the Chief, Division of Personnel Management, of the outcome of the appeal with a followup memorandum.
2.37 Disciplinary/Adverse Action Case Files. The documents listed below will be maintained in an evidence file when a disciplinary/adverse action is initiated against an employee. This required file, or a copy thereof, will be made accessible to the affected employee, the deciding official in a grievance, the MSPB or other third parties involved in the appeal of a disciplinary/adverse action. The case file will contain the following:
A. A copy of the signed and dated notice of proposed action, if applicable;
B. The employee's written reply, if applicable;
C. The summary of the employee's oral response, if applicable;
D. A copy of the signed and dated notice of decision of disciplinary/adverse action;
E. Any copy of the documentation effecting an action covered by this chapter (e.g., SF-52 and SF-50); and
F. Any supporting material. Supporting material is that which management based its notice of proposed action and relied on to support the reasons in the notice. It may include statements of witnesses, affidavits, documents, and investigative reports or extracts from them.
For additional information about this policy, contact your servicing Human Capital office. For more information regarding this Web page, contact Krista Bibb, in the Division of Policy and Directives Management.