Federal Employee Frequently Asked Questions

As a federal employee you have a right to advance notice when your agency intends to suspend, demote, or terminate you for performance or conduct related issues. This notice is often referred to as a “proposal letter.” The first thing you should do when you receive a proposal letter is to read it very carefully. When reviewing your proposal letter pay close attention to the following sections:

 (a) Charges and Specifications: This section should outline the agency’s charges against you and the specific reasons the agency intends to rely on in supporting each charge. 

 (b) Penalty Determination: This section should provide details regarding how the agency determined the penalty against you. These reasons are often referred to as the “Douglas factors.” If the Douglas factors analysis is not included in your letter, it may be included by separate attachment. 

 (c) Right to Respond: This section will outline the number of days you have to respond (orally or in writing) to the charges against you. 

 (d) Right to Representation: This section will notify you of your right to be represented by an attorney or representative of your choosing. 

If you have received a Notice of Proposed Removal then a prompt and thorough response that does not leave out important arguments is important. Please contact us and we can help guide you through this process. 

Advance notice of the agency’s decision to remove, demote, or suspend you will be outlined in what is often referred to as a “decision letter.” If you have received a decision letter, you should read it very carefully and be mindful of any deadlines you have to challenge the agency’s decision. 

Appealing an agency decision is a complicated process. If you have received a decision letter you should contact an attorney immediately for assistance. 

The Douglas factors are factors that an agency will consider when deciding 

the penalty against you. The Douglas factors include: 

1. Nature and seriousness. The most important of the Douglas factors is the nature and seriousness of the offense. Among the considerations included in this factor is the relationship of the offense to the employee's duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Serious misconduct can outweigh an employee's good performance, length of service, and lack of prior discipline.

2. Employee's job level and type of employment. For example, Agencies are entitled to hold supervisors and law enforcement to a higher standard of conduct because they occupy positions of trust and responsibility. 

3. Past disciplinary record. Agencies often seek to justify adverse action on the basis of current charges coupled with references to past discipline imposed against the employee. Past discipline is an aggravating factor, and it can make a significant difference in a case. 

4. Past work record. Performance records and years of service can be significant mitigating factors.

5. Ability to perform in the future. Offenses inconsistent with an employee's supervisory responsibilities call into question his ability to function as a supervisor in the future. 

6. Consistency with other penalties. A penalty for misconduct should be consistent with the penalty imposed upon other employees for the same or similar offenses. These other employees are called “comparators”. An agency cannot knowingly and unjustifiably treat employees differently. See Singh v. United States Postal Service, 2022 MSPB 15, Docket Nos. SF-0752-15-0014-I-1, SF-0752-15-0155-I-1. 

7. Consistency with table of penalties. An agency may depart from its table of penalties if: 1) it is not required to follow the table by law; and 2) it has not stated it intends to be bound by the table. 

8. Notoriety and impact. Publicity or even the possibility of publicity that could have a negative impact on the reputation of the agency is a factor that may be considered to enhance a penalty.

9. Clarity of notice. While lack of notice of the rules to be followed can be a mitigating factor, an agency is under no obligation to warn employees about behavior they should know is improper. When an employee receives multiple express warnings concerning deficiencies in their behavior, they are on notice that the behavior is not acceptable. Training or policies on a rule or directive are considered notice. 

10. Potential for rehabilitation. 

   ● Good potential for rehabilitation. An employee who has served an agency for a substantial period of time without prior discipline, has a good work ethic, and immediately reports an incident of misconduct and takes responsibility for their actions shows a good potential for rehabilitation. 

   ● Poor potential for rehabilitation. Where an employee's admission of misconduct and expression of remorse do not come until after the agency conducts its investigation, the employee's apology is entitled to little or no mitigating weight.

11. Mitigating circumstances. An employee's failure to bring a mitigating factor to an agency's attention does not prohibit an administrative judge from considering that factor. Such failure merely affects the weight of the factor. Some examples of mitigating factors include: 

   ● lack of intent, 

   ● job-related stress, 

   ● medical conditions, 

   ● was it an isolated instance or part of a pattern of misconduct; 

   ● discrimination by the agency or deciding official; or

   ● retaliatory motivation by the agency or deciding official. 

12. Availability of alternative sanctions. An agency only has to show that it considered relevant factors and that the penalty was reasonable. It does not have to prove that the greater penalty it imposed was necessary when it was free to choose a lesser penalty. Making an example of an employee is not allowed. In cases involving medical conditions, an administrative judge can consider that the employee is capable of performing the duties of a vacant lower-graded position in determining whether the penalty of removal, as opposed to reassignment, is reasonable. 

When dealing with an action where the Douglas factors it may be helpful to consult with an attorney on how they apply to your specific situation. 

If you received a proposal notice that says you are being removed under Chapter 43 this means that the agency is accusing you of failing to meet your established performance standards. 

To defend an action under Chapter 43, the agency must prove by substantial evidence that: 1) OPM approved the performance appraisal system and any significant changes; 2) the agency communicated the performance standards; 3) the employee’s performance standards are valid under 5 USC 4302 (c)(l ); 4) the employee’s performance during the appraisal period was unacceptable in one or more critical elements; 5) the agency warned the employee of the inadequacies in their performance during the appraisal period and gave them an adequate opportunity to demonstrate acceptable performance; and 6) after an adequate improvement period, the employee’s performance remained unacceptable in at least one critical element.

If you are facing an adverse action under Chapter 43 you need to have an experienced attorney assist you with responding to the agency’s charges against you. Our firm can assist you with preparing a thorough response to these performance-based charges. 

Unlike Chapter 43, Chapter 75 contains no express provision that requires an agency to afford an employee an opportunity to improve his performance. If an agency chooses to proceed under Chapter 75, it may not circumvent Chapter 43 procedures by charging that an employee should have performed better than his performance standards required. 

To sustain a Chapter 75 adverse action based on a charge of unacceptable performance, the agency must prove that: 1) the employee was notified that he was required to perform a particular duty; 2) the employee's performance of the duty was unacceptable; and 3) the agency measured the employee's performance in an accurate and reasonable manner.

An agency must prove unacceptable performance in a Chapter 75 action through the production of a preponderance of the evidence. If you have received a Chapter 75 notice of adverse action it is important to hire an experienced attorney to help with your response as there is no opportunity for improvement. Our office can assist you with preparing a thorough response to defend yourself against these charges. 

By law, an agency is required to provide accommodations to applicants and employees with disabilities. Generally, a reasonable accommodation is a modification or adjustment to an agency’s application process or work environment that allows an individual with a disability to enjoy the same employment opportunities as an individual without a disability. For example, an agency may accommodate an employee’s disability by providing telework or a modified work schedule.

The reasonable accommodation process can be complicated for employees and it often involves a lot of paperwork. If your agency is failing to promptly process your reasonable accommodation request or if you are being retaliated against for requesting an accommodation, we may be able to assist you with filing a complaint. 

Federal agencies are required to adhere to strict policies and procedures regarding hiring and promotion. If you were denied a position or a promotion for an illegal reason such as discrimination or retaliation, you may be able to challenge the agency’s decision before the EEOC, MSPB, or file a grievance. Additionally, if you are a member of a union there may be additional considerations or remedies contained in the collective bargaining unit. You may wish to schedule a consultation to discuss your options. 

If your case is scheduled for hearing you should seek representation right away. An arbitration hearing is similar to a trial in court. Throughout the process you will be expected to know and follow all of the procedures outlined in your collective bargaining agreement and the Federal Management Relations Statute. At hearing, your case will be heard by an arbitrator who will issue a decision in your case. The agency will be represented by an attorney and during the hearing you will be allowed to introduce evidence and to question witnesses. The agency will also be allowed to introduce evidence and to question witnesses–including you. A court reporter may be present to record everything that is being said during the hearing. 

It is important that you have representation knowledgeable on arbitration proceedings and the applicable law. 

The U.S. Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive Branch. Federal employees can file an appeal with the MSPB for adverse employment actions taken against them. If you received a letter that states you have appeal rights to the MSPB, our office can represent you. 

(a) You must file an appeal in writing with the regional or field office of the Board that has jurisdiction over the area where your duty station was located when the agency took the action. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits, and appeals of adverse suitability determinations under 5 CFR part 731, must be filed with the regional or field office that has jurisdiction over the area where you live. 

(b) An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later. Special statutory time limits apply to filing appeals under certain laws. 

(c) Appeals may be filed through MSPB’S e-filing process, by mail, by facsimile, by commercial overnight delivery, or by personal delivery. 

(d) When filing the MSPB appeal you will need to file MSPB form 185 and attach the agency’s proposal letter, decision letter, and SF-50, if available. You will also need to identify the following: 

   ● The agency personnel action or decision you are appealing;

   ● The date you received the agency’s final decision;

   ● Whether any attempt was made to engage inalternative dispute resolution (ADR);

   ● An explanation of why you think the agency was wrong in taking this action, including whether you believe the agency engaged in harmful procedural error or a prohibited personnel practice under 5 U.S.C. § 2302(b) such as unlawful discrimination, retaliation for whistleblowing activity, or retaliation for other protected activity;

   ● Whether you have filed a grievance under a negotiated grievance procedure provided by a collective bargaining agreement (and a copy of the grievance if so);

   ● If you are filing an IRA appeal whether you filed a whistleblowing complaint with the Office of Special Counsel (OSC) and the date which OSC made a decision or terminated its investigation, if applicable (and a copy of these documents as well);

   ● If it is a USERRA or VEOA appeal then relevant information and documents from your complaint;

   ● Additional information and documents if you are appealing an OPM or Agency Retirement Decision; and

   ● A designation of your representative if you are hiring an attorney. 

(e) When a Board regional or field office receives an appeal, the case is assigned to an administrative judge in that office. The administrative judge will issue a decision after considering all of the relevant evidence in the case.

(f) Once it is established that your appeal was timely filed and that the Board has jurisdiction, you generally have a right to a hearing on the merits of your case. The exceptions to this right are USERRA and VEOA appeals, in which the administrative judge has discretion whether to hold a hearing requested by an appellant. You may waive a right to a hearing and choose instead to have the appeal decided on the basis of the written record, which will include all pleadings, documents, and other materials filed in the proceeding. If there is a hearing, you will have the opportunity to present evidence, including the testimony of witnesses. Hearings are conducted by video conferencing rather than in person which means your attorney can represent you from anywhere in the nation.

If you need to file a MSPB appeal let us discuss the process with you. 

Under federal law, an agency cannot retaliate or otherwise take a personnel action against an employee because of their whistleblower activities.  To establish MSPB jurisdiction over your IRA appeal you generally must first make a complaint to the Office of Special Counsel (OSC) and exhaust the OSC investigative process.  

A PERSONNEL ACTION means: (1) an appointment, (2) promotion, (3) adverse action under Ch. 75, (4) detail, transfer or reassignment, (5) reinstatement, (6) restoration, (7) reemployment, (8) performance evaluation; (9) a decision concerning pay, benefits, awards, or concerning education or training if reasonably expected to lead to an appointment, promotion, performance eval, or other personnel action, (10) a decision to order psychiatric testing, (11) implementation or enforcement of a NDA, or (12) any other significant change in duties, responsibilities, or working conditions. 

Whistleblowing activity includes employees making a PROTECTED DISCLOSURE, engaging in a PROTECTED ACTIVITY, or even being PERCEIVED AS A WHISTLEBLOWER.

A PROTECTED DISCLOSURE includes any violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

PROTECTED ACTIVITY includes filing an whistleblower complaint; testifying or assisting a whistleblower; cooperating with or disclosing information to the IG, OSC, or internal investigation or review; or refusing to obey an unlawful order. 

Even being PERCEIVED AS A WHISTLEBLOWER means you are entitled to whistleblower protection laws. It does not matter whether you actually made disclosures or engaged in protected activity. 

At hearing, you must prove that a disclosure or protected activity was a CONTRIBUTING FACTOR in the personnel action. If the agency official knew of the whistleblower activity and it occurred within a reasonable time of the personnel action, it is PRESUMED the disclosure or protected activity was a contributing factor in the personnel action.

If you are able to establish that your whistleblowing activity was a contributing factor to the personnel action, then the agency now has to prove by CLEAR AND CONVINCING EVIDENCE that it would have taken the same action in the absence of the protected disclosure. 

If you are a whistleblower who needs protection please contact our office so we can defend you. 

An EEOC complaint is a complaint made to the U.S. Equal Employment Opportunity Commission. An EEOC complaint is made when an individual believes they have been discriminated against because of a protected characteristic such as race, gender, or disability. An EEOC complaint may also be made if an individual believes they are being retaliated against for making an EEO complaint or for participating in the EEO process. 

The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or through ADR, you can file a formal discrimination complaint against the agency with the agency's EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file. Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late).

If the agency doesn't dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a final decision as to whether the discrimination occurred.

If you ask the agency to issue a final decision and no discrimination is found, or if you disagree with some part of the decision, you can appeal the decision to EEOC or challenge it in federal district court. If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal within 30 days from the day you receive the notice from the agency about your hearing rights. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

Once the agency receives the Administrative Judge's decision, the agency will issue what is called a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.

If you believe you have been discriminated against or subject to retaliation and may have an EEOC claim then time is of the essence. You should contact our office immediately. 

Unlawful discrimination occurs when a person or a group of persons are treated differently because of a protected characteristic or status. Federal employees are afforded broad protections against discrimination and retaliation. It is commonly known that federal employees and applicants are protected from discrimination based on their race, religion, gender, color, disability, or age. However, federal employees are also protected from discrimination based on political affiliation, military service, and parental status. If you believe you have been the victim of discrimination you should contact us to discuss your options. 

Unlawful retaliation occurs when a person or a group of persons are treated differently because they engaged in activity protected by law. Under federal law, it is unlawful to retaliate against an employee or applicant because they engaged in protected activities such as filing a discrimination complaint, making a protected whistleblower disclosure, or requesting a reasonable accommodation. 

Whistleblower Protection Act of 1989. This law authorizes an appeal to MSPB if you allege that you were subject to an agency action that was taken or threatened (or is about to be taken or threatened) because of certain legal disclosures of information, commonly known as whistleblowing. Unless the matter is directly appealable to the Board under law, rule, or regulation, you must first file a complaint with the Office of Special Counsel and exhaust the procedures of that office. 

If you believe you have been the victim of unlawful retaliation you should contact us to discuss your options. 

If you have received a favorable final agency decision in your EEO case you should seek an attorney right away to assist you with presenting evidence of your damages. In your case, you may be able to recover damages for pain and suffering, lost wages (including backpay), out of pocket expenses, and other losses you have suffered because of discrimination or retaliation. Knowing the best way to present your evidence to maximize your damages requires legal knowledge and expertise. 

If you have received a final agency decision in your favor and you need to respond to the agency’s request for your damages, we can prepare a comprehensive and persuasive request for damages on your behalf. 

MSPB procedures are complicated and if you decide to handle this matter yourself, you will be at a significant disadvantage. The agency is almost always represented by an attorney in these proceedings. Importantly, even if you do not have an attorney, the judge will expect you to know and follow MSPB procedures (including discovery and filing deadlines). At hearing, you will be expected to understand how to present relevant evidence, how to respond to legal objections from agency counsel, how to question witnesses, and how to make persuasive legal arguments to the judge. Therefore, it is not advisable to represent yourself at a MSPB hearing. Contact us today to discuss. 

Mediation and the efficient resolution of matters without a hearing is highly favored in the federal administrative process. If you have requested a hearing, your administrative judge will likely encourage you to attempt to mediate your case with the agency. Having experienced counsel by your side during mediation puts you at an advantage for the following reasons:

   (a) Experienced counsel can persuasively articulate your demands to the agency, 

   (b)  Having experienced counsel by your side can strengthen your negotiation position; and, 

   (c) If your case is resolved during mediation, the agency will draft the settlement agreement. Experienced counsel can review the written settlement agreement terms for consistency with what was agreed to during mediation. Contact us today to discuss. 

In most cases, you will receive a decision within 120 days. 

Even if you are not part of a union, you may still be able to file an administrative grievance with your agency. Information regarding administrative grievances should be outlined in your agency’s human resources policies. You may also contact human resources for information regarding your agency’s administrative grievance process. 

If you have filed an administrative grievance, our office can represent you in an administrative hearing before the deciding official(s).