In matters of proposed discipline, having the right lawyer matters. The modern federal employment system is a complex statutory scheme created more than 40 years ago, implemented by various administrative processes derived from nuanced statutory and regulatory provisions. Navigating any one of those processes requires a tailored approach.
Depending on your agency and the basis for the proposed discipline, the agency’s legal authority for the proposed action and your rights may come from various sections of either Title 5, Title 38, Title 42, or Title 50 of the U.S. Code. Each different legal authority for taking a proposed action affords employees distinct rights, available defenses, and grievance or appeal rights.
For 40 years, Shaw, Bransford & Roth has represented federal employees across government and numerous federal agencies, giving us the experience you need when encountering proposed discipline. We leverage that experience to shepherd our clients through complicated administrative processes and advise them on options and potential outcomes, so they can make informed decisions on their legal situations.
Disciplinary and Adverse Actions under Chapter 75
Chapter 75: Know Your Rights After Receiving Proposed Discipline
Federal personnel law is complicated. As a federal employee facing discipline, you are entitled to certain processes and protections before your agency can take a disciplinary action against you. Understanding these processes is important, as they determine your deadlines and your rights.
As a federal employee covered under Chapter 75, when you receive a proposed disciplinary or adverse action you are entitled by law to:
30 days’ advance written notice of the charges against you;
Notice of proposed penalty;
The evidence relied upon by the agency;
Representation by an attorney; and,
An opportunity to respond orally and in writing to the proposed charges against you.
Your response to the proposal is important. It is your opportunity to address the charged conduct against you, clarify and expand on the underlying facts, and invoke the discretion of the agency official who will decide your case. We work with you to develop an in-depth understanding of what is legally important and a detailed knowledge of what factors the decision-maker will consider in determining the outcome of your case.
Our lawyers guide you through what may seem like an insurmountable process, and work with you to prepare a written response to the proposal. We thoroughly review and assess the evidence relied on by the agency and identify any evidentiary gaps, evaluate the strength of the agency’s case and whether the agency can prove the charges against you under the appropriate evidentiary standard (which varies depending on your employer and the statutory processes used to propose discipline), and work with you to develop and present an effective defense.
We also prepare you for the oral reply, and advocate on your behalf at the oral reply, whether it is held telephonically, on a video conference, or in person. Leading up to the oral reply, we facilitate your development of a statement that you will deliver to the deciding official. Your oral reply statement should buttress your defense to the proposed action and further advance your case.
The Douglas Factors: Addressing the Reasonableness of the Penalty
Often, responding to a proposed disciplinary or adverse action under Chapter 75 involves not only addressing the merits of the alleged infraction, but also addressing whether the proposed penalty is legally appropriate.
Agency decision makers are generally required to consider the following factors, known as the Douglas factors, when evaluating whether the proposed penalty should be imposed. The factors to be considered are:
The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
The employee's job level and type of employment, including supervisory, or fiduciary role, contacts with the public, and prominence of the position;
The employee's past disciplinary record;
The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties;
Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
Consistency of the penalty with any applicable agency table of penalties;
The notoriety of the offense or its impact upon the reputation of the agency;
The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about conduct in question;
Potential for the employee's rehabilitation;
Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Consistency of the penalty with any applicable agency table of penalties;
The notoriety of the offense or its impact upon the reputation of the agency;
The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about conduct in question;
Potential for the employee's rehabilitation;
Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 332 (1981).
Our attorneys are skilled at working with clients to fully understand the circumstances surrounding their actions and omissions. We listen to you, ask questions, and draw out pertinent facts. We then work with you to personalize a response that factors in the particular circumstances at issue in your case and highlight the Douglas factors that support a legally appropriate outcome.
Your Rights Following a Disciplinary or Adverse Action under Chapter 75
Should the agency sustain charged conduct against you and impose a penalty, our attorneys are ready to assess your rights and plan an appropriate strategy for you to contest the action. Your rights depend on the level discipline imposed and your employment status.
If the discipline imposed is a reprimand or suspension of 14 days or less, and you are a non-bargaining unit employee, your rights to appeal the decision will derive from your agency’s internal grievance procedures. 5 C.F.R. § 752.203(f).
If you are a non-probationary employee and the penalty imposed is a suspension of greater than 14 days, a reduction in grade, a reduction in pay, or a removal action, you have the right to file an appeal with the Merit Systems Protection Board (MSPB).
In an MSPB appeal, you are entitled to a hearing before an administrative judge, who will issue a decision on your appeal. Our attorneys work with you to evaluate the strength of your appeal and prepare your case for hearing. This includes conducting discovery, which entitles you to request documents and ask questions about the agency’s case to ferret out important facts, and conduct depositions, which allows us to question involved management officials and witnesses to fully understand the strengths and weaknesses of the agency’s case.
In preparation for your MSPB hearing, we work with you to develop a litigation strategy that has the greatest likelihood of success. At hearing, you will have an opportunity to tell your story, and we conduct effective cross-examination of agency officials to highlight the shortcomings in the agency’s case. Following a hearing, if required by the administrative judge, we fully brief your case to ensure the judge takes into consideration all important evidence mentioned at the hearing.
If you are successful in your appeal, we assist you in preparing a fee petition to argue for the payment of attorney fees by the agency. We have successfully litigated dozens of cases before the MSPB, and have been successful in securing payment of successful litigants’ attorney fees. If your initial appeal is unsuccessful and you have grounds for a second-level appeal, our attorneys evaluate your options and advocate for you by filing a petition for review with the MSPB members.
More information about the entire appeals process (from initial appeal through petition for review) can be found on the MSPB's website.
Shaw Bransford & Roth is a full-service litigation practice. We negotiate, litigate, advocate, and counsel at all stages of the litigation process. When your career is on the line, we deliver experienced legal service.
Adverse Actions under Chapter 43
Is the Proposed Performance-Based Action under Chapter 43 or Chapter 75? It’s a Difference That Matters
Agencies have two separate statutory processes under Title 5 to take a personnel action against an employee for poor performance – Chapter 43 actions and Chapter 75 actions. The legal elements, standards of proof, and available actions are different depending on which statutory process is utilized by the agency. Thus, it is critical to understand what legal process you are in, and how that process affects your rights.
Under Chapter 43, an agency may seek to demote or remove an employee from federal service when the action is based solely on the employee’s failure to meet a critical element in an employee’s performance standards. The performance standards are established annually based on an employee’s position description. Before an agency can bring an action under Chapter 43, the agency must first provide the employee an adequate opportunity to improve, commonly referred to as a performance improvement plan (PIP).
The agency’s burden of proof in Chapter 43 actions is relatively low, “substantial evidence.” Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
Under Chapter 75, the array of proposed penalties available to an agency is much broader. The agency may also reprimand employees or propose to suspend employees. With Chapter 75, the proposed action is based on conduct not specifically tied to performance standards.
Chapter 75 actions place a higher burden of proof on agencies. It requires agency to prove the charged misconduct, nexus, and the penalty by “preponderant evidence.” Preponderant evidence is the “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.” 5 C.F.R. § 1201.4(q).
The type of statutory process used by your agency depends on a variety of factors, including the nature of the agency, the nature of the work performed, and the amount of time the agency is willing to expend to correct the performance deficiency leading up to the proposed action. Some agency officials may choose to bring a performance-based action under Chapter 75, because they believe a formal performance improvement period will take too long to correct the job deficiency. Others may choose to bring an action under Chapter 43, because the agency’s burden of proof is lower.
We understand that these statutory processes can be complicated. Our attorneys are prepared to educate you on your rights and the statutory processes at issue.
Chapter 43 Actions: Your Rights and the Agency’s Legal Requirements
Certain processes are required under Chapter 43 before an agency can demote or remove you from the federal service. Our attorneys make sure you understand these legal processes and evaluate whether they have been met.
Chapter 43 requires agencies to provide employees with performance standards and the critical elements of their position at the beginning of each performance cycle. When an agency determines that your performance in one or more critical elements is unacceptable, it is required to give you an opportunity to demonstrate acceptable performance. It fulfills this requirement by placing you on a performance improvement plan (PIP), and granting you a meaningful opportunity to improve.
In a PIP, the agency specifies what performance is unacceptable and what must be done for your performance to be deemed acceptable during the PIP. But the agency is also required by statute to assist its employees to improve their performance during the PIP. The use of a PIP is one of the key trade-offs and challenges to agency officials when deciding to bring an action under Chapter 43, as opposed to under Chapter 75. The amount of time provided for in a PIP varies depending on the agency.
Our attorneys are well versed in Chapter 43 actions, and we are leading the discussion on changes to the legal requirements needed for an agency to bring a Chapter 43 action. Indeed, the U.S. Court of Appeals for the Federal Circuit (which reviews MSPB decisions) appointed one of our attorneys, Debra Roth, to be amicus curiae counsel in Santos v. NASA to brief a statutory interpretation question from the position of the pro se employee-petitioner.
In the landmark opinion in Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021), issued on March 11, 2021, a panel for the Federal Circuit adopted the position that we argued. The Federal Circuit held that when an employee challenges a removal action based on unacceptable performance at the MSPB, the statutory language in Chapter 43 imposes a requirement on an agency to prove pre-PIP unacceptable performance to justify placing an employee on a PIP. Before the Santos decision, federal agencies were not required to prove an employee had unacceptable performance prior to placement on a PIP.
When the PIP concludes, if the agency finds that you “continue to” have unacceptable performance, it will issue to you a proposed adverse action under Chapter 43. When you receive such an action, you are entitled to:
30 days’ advance written notice of the charges against you;
The specific instances of unacceptable performance; and,
The critical elements of your position involved in each instance of unacceptable performance;
Notice of the proposed action – whether it will be a demotion or removal from service;
Representation by an attorney; and,
An opportunity to respond orally and in writing.
Like defending a Chapter 75 action, your response to a proposed Chapter 43 action is critical. It is your opportunity to address any procedural deficiencies by the agency and to explain why your performance was acceptable, both before and during the PIP. We are ready to work with you to ensure that all statutory requirements leading up to the action were complied with and put on a defense to showcase your past work.
After you respond to the proposed performance action, the agency is then required to issue you a written decision that identifies specific examples of unacceptable performance. Congress designed Chapter 43 to make it easier for agencies to sustain performance actions against employees. The agency’s burden of proof is relatively low (as compared to Chapter 75 actions.) Chapter 43 only requires agencies to prove the unacceptable performance by substantial evidence.
Should the agency sustain the proposed action, be it demotion or removal, you are entitled to appeal the action to the MSPB. Our attorneys are prepared to present to you a realistic assessment of your ability to prevail in an appeal, and work with you to defend against the agency’s action.
Adverse Actions under Title 38
The Legal Processes for Title 38 VA Employees Differ
If you are an employee of the Department of Veterans Affairs (VA), the rights afforded to you may fall under a relatively new statutory authority, 38 U.S.C. §§ 713 and 714. Under that law, the VA may propose an adverse action (meaning a suspension of 15 or more days, demotion, or removal) against you for performance or misconduct. The processes afforded to VA employees under this law differ from those found in Chapter 75, and make it faster and easier for the VA to take personnel actions against its employees.
In 2017, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. Under this law, the timelines for the entire period of notice, response, and a final decision on a proposed action are shortened, limited to only 15 business days. Under this new law, a VA employee has only 7 business days to reply to any proposed action against him or her. In the event that the agency’s deciding official imposes a suspension greater than 14 days, demotion, or removal action, a VA employee has a right to appeal the action to the MSPB. But this deadline too is reduced, and any appeal with the MSPB must be filed no later than 10 business days after the VA’s decision has been issued.
After the 2017 law went into effect, the VA erroneously applied it. Specifically, the VA used the “substantial evidence” standard of proof (the same lower burden of proof utilized by agencies to sustain performance actions under 5 U.S.C. Chapter 43) when determining whether the charged misconduct occurred, and did not use the Douglas factors to assess the reasonableness of the proposed penalty.
In August 2021, the Federal Circuit issued two cases, Rodriguez v. Department of Veterans Affairs, 8. F.4th 1290 (Fed. Cir. 2021), and Connor v. Department of Veterans Affairs, 8 F. 4th 1319 (Fed. Circ. 2021), that corrected the VA’s misapplication of the law. In Rodriguez, the Federal Circuit held that preponderance of the evidence (a higher burden of proof), is the “minimal appropriate burden of proof” the VA may use in determining whether alleged misconduct occurred in section 714 disciplinary actions. In Connor, the Federal Circuit held “[section] 714 did not alter preexisting law” regarding the Douglas factors and that “the VA and the Board must continue to apply the relevant Douglas factors in considering the reasonableness of the penalty.”
Still, with this law, the VA has options when proposing adverse actions such as removal, demotion, or a suspension of 15 days or more. If the VA decides to propose an adverse action, it may do so under either 38 U.S.C. § 714 or under the existing processes found in Chapter 75. But if the VA wishes to propose a disciplinary action (like a reprimand or suspension of 14 days or less), then it is limited to use the processes found in Chapter 75, since the statutory processes in 38 U.S.C. § 714 do not apply to these minor disciplinary actions.
If you receive a proposed adverse action under 38 U.S.C. § 714, it is important to know you will have to meet tight deadlines. At Shaw Bransford and Roth, our attorneys are experienced in and familiar with the VA’s processes and ready to swiftly work with you to respond to the proposal notice and/or litigate your case before the MSPB. We have litigated landmark cases on behalf of VA employees, such as Graves v. Department of Veterans Affairs, MSPB Docket No. CH-0707-16-0180-J-1 (Jan. 29, 2016), Rubens v. Department of Veterans Affairs, MSPB Docket No. PH-0707-16-0151-J-1 (Feb. 1, 2016), and Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017). We are at the forefront of important legal issues affecting VA employees.
Other Disciplinary and Adverse Actions Against Federal Employees
At Shaw Bransford & Roth, we also work with members of the Senior Executive Service, Foreign Service employees, Title 38 medical professionals of the Veterans Health Administration, Title 42 employees, and other federal employees hired under special authorities. Your rights in responding to proposed discipline vary depending on what legal authority you were hired under. Our attorneys will ensure you know what your rights are and work with you to navigate you through the legal processes available to you.