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By Debra Roth

Q & A Session : Factors Considered for Proposed Disciplinary Action

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Q:

I am a federal supervisor, who recently proposed a disciplinary action for an employee. My supervisor is the deciding official.

Is the deciding official required to complete their own separate analysis?

A:

The Federal regulations outlining the procedures for taking disciplinary actions (defined as suspensions of 14 calendar days or less) and/or adverse actions (defined as suspensions of greater than 14 calendar days, removals, or reduction in pay or grade) against a Federal employee require that an agency, in arriving at its decision, “will consider only the reasons specified in the notice of the proposed action and any answer of the employee, or his or her designated representative, or both, made to a designated official.”  See 5 C.F.R. §§ 752.203(e) and 752.404(g).  Thus, when determining whether to sustain a proposed disciplinary action or adverse action, a deciding official must consider both what is asserted in the notice by the proposing official and what is asserted in response to the proposal by the employee.

Contrarily, a deciding official may not consider any information that was not previously made available to the employee in the notice of proposed action, or provided by the employee in response to the proposal. Indeed, when a deciding official considers new and material information that was not made available to the employee when sustaining a proposed disciplinary or proposed adverse action, the resulting disciplinary action or adverse action must be set aside for lack of due process.  See Stone v. FDIC, 179 F.3d 168 (Fed. Cir. 1999).

However, this does not mean that a deciding official is precluded from obtaining and considering new, material information after an employee responds to a proposed action.  Rather, it merely requires that when a deciding official obtains new, material information after an employee responds to a proposed action that the deciding official is relying upon to make the decision, the employee must be afforded notice of and the opportunity to respond to that information.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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