Disciplinary actions against federal employees: Never go it alone

As a federal civilian employee, you enjoy various rights, protections and avenues of due process that most workers can only dream about. There's no better time to exercise these rights and protections than when facing a disciplinary matter that could affect, or possibly end, your federal career.

It is the federal agency pressing the discipline - or "adverse action," as these matters are known - that has the burden of proof.

The government must prove that both the alleged adverse action and the penalty being imposed are justified in order to "promote the efficiency of the federal service." That is the vague federal standard underlying most federal civilian employee disciplinary cases.

In a previous article we explained how federal agencies initiate disciplinary complaints against federal workers, and we outlined the initial steps those accused employees must take in order to preserve their rights of due process. Now, we get down to the process for litigating such matters before the Merit Systems Protection Board, or MSPB. You'll recall that this is the federal equivalent of a state Civil Service Commission.

Once you have been put on notice of an adverse action against you and you have filed your initial appeal to the MSPB, it is time to begin using both the facts of the case and all the facets of federal law to protect your career and defend your federal civilian employment.

At this crucial stage, federal employees stand to benefit from experienced legal representation. I tell all of my federal clients facing this situation that they are in charge of the facts of the case. But I am in charge of the law. To be successful, we will need both the employee's story of what occurred and my expert legal experience with the federal disciplinary process to make sure that all the facts of the case are examined and challenged.

What I never recommend is trying to go it alone.

Remember, the burden of proof is on them. But to fully exercise your federal employee due process rights, you'll want to mount a detailed and convincing defense that challenges every fact, every assumption and every aspect of the law as it pertains to your case.

Being heard

At MSPB appeal hearings, the federal agency employer must present, explain and defend all of the alleged evidence it used to arrive at the adverse action against the accused employee. And the agency then must justify the disciplinary penalty it imposed as a result. Only then does the federal agency meet its burden of proof.

At the hearing, the employee is entitled to full legal representation. This gives you and your attorney the opportunity to challenge the alleged evidence against you and present favorable witnesses.

The legal question before the MSPB administrative judge is two-fold. First, the judge must weigh the evidence presented by both sides and determine if the allegations are justified or if the claims should be modified or dismissed.

Second, the MSPB judge considers the penalty imposed by the federal agency for the alleged offense. Again, this, too, is open to legal challenge under the federal disciplinary process.

The system is very much a two-part equation. The adverse action taken against the employee and even the initial appeal review of the case by the MSPB can be attacked both on whether the disciplinary action was justified and whether the proposed penalty was too severe.

At the MSPB hearing level, all available factual and legal arguments can and should be brought to bear. Our goal is to first try to convince an MSPB administrative judge that an alleged offense wasn't what the government says it was. And failing this, we argue that the penalty imposed isn't justified by the offense.

It's high stakes, to say the least. That's why Step One is retaining an attorney with plenty of experience in federal employment law.

Strength in numbers?

For federal employees covered by a collective bargaining unit or union ─ and for those disciplinary actions involving an unpaid suspension of 14 days or less ─ an alternative avenue for relief is the filing of a grievance. By doing so, the employee gains the assistance and backing of the union.

While pursuing a grievance is more cost-effective and usually is decided in a shorter period of time, I still recommend mounting a full MSPB appeal and having the hearing instead.

An MSPB appeal brings with it the full panoply of due process hearing rights. This includes the very important right to engage in discovery by seeking and obtaining all the evidence that the agency has to factually and legally support its case. As mentioned before, this includes not only the discipline imposed, but the penalty imposed as well.

Unfortunately, there are numerous time limits that come with MSPB appeals. The clock is ticking before and during the process. Time limits govern how long federal employees have to respond to the proposed adverse action against them. And there are time windows for submissions throughout the process, along with deadlines for appeals of negative MSPB "Initial Decisions."

Generally, these time limits are strictly followed by the MSPB. In other words, a blown deadline can result in a negative outcome for an affected employee. This is yet another reason not to go it alone.

Make no mistake: The stakes are high. Your career is on the line.

But the chances are very good that I can help.