PERMISS

Adverse Actions - Guidance for Deciding Officials

1. One of your subordinate supervisors has proposed an adverse action against an employee because of some incident of misconduct. You have been designated as the official who will make a final decision to take, not take, or reduce the severity of the proposed adverse action.

2. In any proposed adverse action, employee against whom the action is proposed has the right to reply orally and/or in writing, stating "any and all" reasons why the proposed action should not be taken. In the proposal letter, the employee was instructed that such replies must be made only to you, the designated deciding official. Replies made or delivered to anyone else need not be accepted or considered *. Replies must also be made within a certain time frame specified in the proposal letter. An employee may request an extension of the time period allowed to reply. This request should be in writing and state the reasons why more time is needed. If the request is approved, your approval of the extension should also be in writing and specifically indicate the length of the extension.

3. As the deciding official, your function is to impartially review all the evidence of record, give full and impartial consideration to any reply the employee makes, and determine the validity of the proposed action. There are some important procedural concerns which, if violated, could result in the action being overturned on appeal:

  1. No decision should be made until you have given full and impartial consideration to any and all replies made by the employee. Keep an open mind and be careful not to give the appearance of having made up your mind prematurely.

  2. The employee has the right to be informed of, and reply to, all the charges against him/her. The employee has a right to review all material relied on in proposing the action. Be careful that there is no material which influences your decision that the employee was not informed of or allowed to review.

4. As stated above, if the employee decides to reply, he/she may reply orally, in writing, or both. The oral and written replies may be presented at different times and there may be more than one written and more than one oral reply. A written reply is fairly easy to address. You should control the time, place, and setting of the oral reply. In hearing the oral reply, you should make notes of the points presented and summarize them in a Memorandum for Record (MFR) of the meeting. The employee and his/her representative must be given a copy of this MFR and it is good practice to have the employee sign that the MFR represents the substance of his/her oral reply. At no time during the pre-decision stage may you make comments, commitments, or observations which would indicate either that you have made a decision or are predisposed in any direction. Neither should you argue with the employee about the merits of the proposed action. Remain calm, neutral, attentive and open-minded. Additionally, do not say anything which indicates that you have anything less than full authority to make a decision in the matter or that your supervisor or the commander will be making the final decision. If you feel that you have not, in effect, been given full authority to make a decision, notify your servicing CPAC specialist. If the employee raises the issue of discrimination on the basis of race, color, religion, sex, national origin, age, or disability, you should note this fact and inform your servicing CPAC specialist. This information may require a specific notification of rights in the final decision memorandum which the CPAC specialist will complete for your signature.

5. In spite of the controls over the employee's right to reply which you attempt to impose, employees often ignore them. For example, the employee may submit a late reply without having obtained an extension; the employee may try to reply to someone other that the designated official. Generally, if the employee fails to follow instructions in presenting a reply there may be grounds for ignoring the reply. (Seek advice from your servicing CPAC specialist). However, unless there is a very good reason for disallowing the reply, it is always best to be liberal in accepting and giving full consideration to any reply the employee makes. Be careful to consider all replies the employee makes. For example, the employee may stop you in the hall and say something about the proposed action. Try to caution the employee that the reply is to be made at a certain time and place. However, it is safest to treat any comments as a reply: write an MFR, give the employee a copy, and reference the reply in the decision letter.

6. If an employee raises a question of health, either physical or mental, as an

excuse, explanation, or mitigating circumstance, you should inform the employee of his/her responsibility to provide medical documentation; to articulate a reasonable accommodation, if any; to explain how the medical condition caused or is related to the misconduct in question; and to explain how the accommodation requested will enable the employee to provide useful and efficient service. An exception to these documentation requirements is a situation where an employee offers dependence on alcohol or drugs as an excuse or mitigating circumstance. In either situation, please call your servicing CPAC specialist for additional guidance on what can be a complicated issue.

7. If the employee fails to submit a reply, you are still obligated to review the proposal, do an independent assessment of the charges and the level of penalty imposed, and make an impartial decision. You should not assume guilt or

acquiesce to the penalty imposed based on lack of a reply by the employee.

8. Once the reply period (plus any extension granted) has expired, you are ready to start the decision process. In addition to the notice of proposed action, the MFR(s) or any oral reply, and any written reply, there are a number of other factors which you need to consider in making your decision. These factors are called the "Douglas Factors" after a precedent setting decision of the Merit Systems Protection Board (MSPB). Linked is a checklist you should use to document your decision process and which will assist your servicing CPAC in preparing the final decision letter for your signature. This checklist contains the Douglas factors. The Douglas factors are not all-inclusive; there may be other mitigating circumstances which are pertinent. After considering all the information available to you, your decision will be one of the following:

  1. The proposed action is sustained. The employee either did not reply or failed to offer any valid/acceptable reasons for his/her actions and the record shows that the proposed action is warranted.

  2. The penalty is reduced. The employee is guilty of the infraction. However, there are relevant, extenuating circumstances which warrant a less severe penalty within the range provided by the DA Table of Penalties Pertaining to Various Offenses.

  3. The proposed action is cancelled. The employee's reply clearly justifies his/her action and the penalty is unwarranted.

9. You cannot impose a more severe penalty than the one proposed. If for some reason additional facts come to light or you feel strongly that a more severe penalty is warranted, the employee must be issued a new proposal letter; be given an additional time to reply; and a decision must be made by a higher level official than you. In this case, you should immediately consult with your servicing CPAC specialist as to the proper procedures to follow.

10. In order to meet regulatory requirements that disciplinary action be taken in a timely manner, your decision should be rendered as soon as possible after expiration of the reply period. Document your decision in a memorandum and attached your Douglas Factor Analysis. You should also complete the linked checklist and hand carried to your servicing CPAC specialist along with the following:

  1. The employee's written reply, if any.

  2. The MFR (signed by the employee) documenting the substance of any oral reply.

11. Requests for Personnel Action (RPAs) will be initiated through PERSACTION. Discuss potential effective dates with your servicing CPAC specialist.

12. Based upon this material, a formal notice of decision will be prepared by the servicing CPAC specialist for your signature which will inform the employee of the decision and any rights he/she may have to grieve or appeal the action. A copy of the Notification of Personnel Action (NPA), will also be forwarded to the employee, either as an attachment to the decision letter or through separate correspondence.

13. If you have any questions or need assistance at any time during these proceedings, please call your servicing CPAC specialist.

* Note that some installations have established a disciplinary/adverse action process were in the employee replies to the proposing official. The proposing official considers the reply (s) and prepares a written recommendation to the decision as to whether to cancel, mitigate, or sustain the proposed penalty, in light of consideration given the reply(s). Both the original employee reply(s) and the proposing official’s recommendation are forwarded to the deciding official for consideration in this process.

Content last reviewed: 6/20/2006-FMJ

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This page was last revised: 11/17/2009