As an employee, facing a proposed disciplinary or adverse action can be an intimidating and stressful experience. Your career and record may be on the line. Most federal employees have due process rights and protections that will enable you to present a written and/or oral response prior to the Agency making a final decision on any proposed action. It is important that you take advantage of this opportunity to defend yourself against the allegations of misconduct or poor performance.

Here are 5 steps to take to defend yourself

1.  Review all the material that the Agency relied upon to propose a disciplinary or adverse action.

The Agency is required to provide you with a copy of the charges and specifications against you as well as all of the documentary and other evidence and information that it relied upon to propose the action against you. You should carefully review the proposal document and all supporting evidence carefully in order to rebut the allegations against you. 

2.   Present both a written and oral reply.

A well-crafted written response that clearly and succinctly disputes the allegations of misconduct or poor performance is essential to defending against a proposed disciplinary action, however, you should also take advantage of the oral reply. The written response is your opportunity to clearly outline your legal and factual defenses to the charges. The oral reply gives you an opportunity to speak directly with the official who will be deciding what action, if any, to ultimately take against you. This is a valuable opportunity to demonstrate to the deciding official that you are not the employee portrayed by the proposing official and to explain in your own words why you should not be disciplined. 

3.   Gather witness statements and other evidence.

While you will not be given a significant amount of time to respond to the proposal, you should use that time to gather supporting evidence and witness statements. If you still have access to your work email and/or documents, this is the time to save helpful emails, statements or other records that you can use to defend yourself. You should also ask coworkers to provide statements to either dispute the factual allegations against you or to provide character statements, which are helpful as mitigating evidence. Character statements can also be obtained from former coworkers, supervisors and/or colleagues who can speak to your integrity, reliability and value as an employee.

4.   Address all charges and specifications and outline mitigating factors.

It is important in your written (and oral) response to address every single charge and specification that is in the proposal. If you can specifically rebut the allegation, you should do so and include supporting evidence to prove you did not engage in the conduct as alleged. If an allegation of misconduct or poor performance is true, you should fully explain the circumstances that led to the incident and highlight all the mitigating factors that should be considered by the deciding official. Mitigating factors are those facts and circumstances that justify issuing a lower penalty than what is proposed and include things like a clean record without prior disciplinary actions, the absence of prior warnings about the conduct, a strong performance record, years of service and/or information regarding the contribution of any disability to the underlying incident. 

5.   Consult an experienced federal employment attorney.

Charges of misconduct or poor performance should be taken very seriously as they can have severe and long-lasting implications for your federal career. It is important to consult with experienced federal employment attorney to ensure that your rights are protected and that you make the strongest legal arguments possible to stop an Agency from taking a disciplinary or adverse action against you. The Law Firm of Matthew D. Estes has represented hundreds of federal employees in disciplinary cases, and we are standing by to advise and assist you in protecting your job.