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