Disciplinary Matters

Avery Dooley & Noone is experienced in defending federal employees from disciplinary matters against both proposed disciplinary measures and against performance-based actions.

Defending Against Proposed Discipline

As a federal employee, in most cases you are guaranteed certain procedural rights before the government can take disciplinary action against you. A federal agency’s disciplinary process generally entitles you to:

  • Advanced notice of the charges you face
  • A right to present a written reply and/or an oral reply to the proposed discipline
  • Typically a minimum time frame of seven days to respond to the charges with your reply and a period of thirty days before the disciplinary action can be implemented

If you believe that you have been wrongly proposed for discipline or if you believe the recommended penalty is too harsh, you must respond to the proposal through your written and oral replies in a persuasive, honest, and professional manner. Your efforts at the reply stage are critical in helping to dismiss unjustified actions and in mitigating excessively harsh penalties. Diligent efforts at this stage avoid costly litigation needed to overturn or mitigate the discipline.

Defending Against Performance-Based Actions

The arrival of an unacceptable performance rating can signal the beginning of a long road toward a performance-based removal action. Agencies typically follow up the less-than-satisfactory evaluation with a Performance Improvement Plan (PIP). Failure to succeed in your PIP, through not demonstrating successful performance, can mean the agency will begin steps to formally end your career.

The agency cannot take an unacceptable performance action against you, however, until it has warned you and given you a chance to improve. During this improvement period, the agency is required to provide you not only with encouragement but also with assistance and training. The agency’s expectations for you during the PIP must be explicit. Although you will have the right to correct the alleged performance deficiencies, you should not await the completion of the PIP to consult an attorney. The act of being placed on a PIP is generally non-grievable unless the agency imposes the PIP for some unlawful purpose, such as discrimination or retaliation. You should consult a federal employment attorney to ensure you are making the proper efforts to survive or challenge the PIP. Failure to survive the PIP—such as failure to obtain a successful rating—can mean one of two things:

  • Removal
  • Demotion

Your job is too precious to ignore this serious weapon that while often implemented with legitimate intentions, is also often wielded recklessly by agencies. Removal may be proper at the end of the PIP when the agency decides that your performance in one-or-more critical elements is unacceptable. If you have been placed on a PIP, make sure your rights are protected.

You must recognize that your actions in the wake of PIP are critically important to ensuring that you maintain a successful career. Contact us to find out how you can leverage our experience in defending federal employees from disciplinary matters.