The Evidence File

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The term “evidence file” has many applications in the administration of certain personnel actions in the spectrum of federal employee and labor relations.  “The evidence file” is often associated with a disciplinary (suspension of 14 days or less, reprimand, admonishment) or adverse action (removal or suspension for more than 14 calendar days, furlough without pay for up to 30 calendar days or a reduction in grade or pay).  By far, this is the most common usage and reference.  However, the term can also be associated with just about any federal or state employee and labor relations matter such as grievances (negotiated and administrative), pay actions, EEO hearings, investigations, Disciplinary Appeal Boards (DAB), etc.  For the specific purpose of this article, we are discussing the most prevalent usage in connection with disciplinary and adverse action procedures in the federal sector.  Most state agencies will have very similar procedures.

In the context of federal employee and labor relations, and more specifically, disciplinary or adverse actions, the evidence file contains relevant documentation and materials related to an employee’s conduct, performance, or other work-related matters concerning the subject of the action. These files serve as a record of evidence to support investigations, disciplinary actions, and other personnel processes and actions.  Depending on the nature of the action at issue (i.e., discipline or adverse action), there are several authorities that could regulate the use and requirements concerning the evidence file.  For example, agencies maintain their own regulations and general guidance concerning the construction and use of evidence files.  Union Collective Bargaining Agreements (CBA) typically contain provisions concerning the disclosure of evidence files when proposing a disciplinary or adverse action or when conducting an investigation affecting a bargaining unit member covered by the CBA.  There are also statutory provisions of law covering evidence (see, 5 USC 7503 and 5 USC 7513) that manifest in a variety of case law, requiring the disclosure of evidence, particularly in adverse actions.   For example, the Due Process Clause of the Fifth Amendment requires agencies to afford an employee full and specific notice of the charges against him as well as access to the agency’s supporting evidence and an opportunity to respond prior to effectuating his removal. Paulic v. Department of the Army (MSPB 2015, nonprecedential), citing Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011).  In fact, if a deciding official considers new and material evidence not previously disclosed to the affected employee, courts typically find a due process violation and will reinstate an employee who was removed. Hicks v. Department of Agriculture (MSPB 2016, nonprecedential), citing Lange v. Department of Justice (MSPB 2013).  This typically occurs when an agency adds evidence after proposing the action and fails to notify the employee of the new evidence and provided him the opportunity to respond to that evidence. 

When a federal employee (and typically state and local government level as well) receives a proposed disciplinary or adverse action, the employee should ensure they also receive a copy of the supporting evidence file.  Most agencies (and best practice strongly suggests), will simultaneously provide the evidence file with the proposed action.  The importance of the evidence file is difficult to overstate.  It constitutes all the evidence the agency is relying on to support the charges and specifications in the proposed action and ultimately, the final decision.  The evidence will be reviewed by the deciding official in the action and the affected employee has the right to challenge the evidence and introduce their own evidence during the reply stage.  All evidence will be used at any third-party appeal hearing (i.e., MSPB, EEOC, or arbitration) and will reviewed for accuracy and relevance by the adjudicating authority.  


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