Title 5 Disciplinary Actions

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Definitions:

Active Duty Status

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Pay Status including authorized overtime, holiday pay, or premium pay.

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Adverse Action

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A removal, separation for disability, suspension for more than 14 days, furlough for 30 days (22 non-continuous days) or less, or reduction in grade or pay effected by management for either disciplinary or non-disciplinary reasons, except for those actions which are excluded by law or regulation (see 5 CFR, part 752)].

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Day.

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Day means calendar day.

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Deciding Official.

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The management official designated to make the final decision on a disciplinary or adverse action

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Disciplinary Action

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An action taken to correct misconduct or other offenses and to enforce prescribed rules of behavior. It includes admonishments, reprimands, and suspensions of 14 days or less.

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Furlough

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The placing of an employee in a temporary status without duties and pay dueto lack of work or funds, or other non-disciplinary reasons

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Official Time

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Time granted to an employee to review the material relied on to support a proposed action, to prepare an answer, and to secure affidavits, If the employee is otherwise in a duty status

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Proposing Official

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The management official who issues a notice of proposed disciplinary or adverse action (i.e., any proposed suspension, removal, reduction in grade or pay, or furlough for 30 days or less)].

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Notice Period.

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The period of time that begins the day after the date an employee receives a written proposal of a disciplinary or adverse action and which ends on the effective date of the action, if effected.

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Reduction in Pay

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An employee's rate of basic pay is reduced involuntarily, that is, not requested by the employee for personal reasons or benefit. Reduction in pay does not include the involuntary loss of any differentials such as standby pay, night work, overtime, hazardous duty, or holiday pay,

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Individual with a Disability

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One who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment (29 CFR 1614.203).

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Qualified Individual with a Disability

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With respect to employment, an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used, (1) meets the experience and/or education requirements of the position or (2) meets the criteria for appointment under one of the special appointing authorities for people with disabilities.

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Paid Non-Duty Status.

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Compensating an employee while not on duty

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For T5 and HT38 Employees, who can issue a letter of admonishment?

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The official who may issue a letter of admonishment will normally be the employee's immediate supervisor or in the supervisory line.

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For T5 and HT38 Employees, who can issue a letter of reprimand?

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The official who may issue a letter of reprimand to an employee must be at the division or service chief level in a field facility.

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For T5 and HT38 employees, who can issue a suspension of 14 calendar days of less?

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The official who may issue a letter of proposed suspension of 14 calendar days or less to an employee must be at the division or service chief level or above in a field facility.

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For T5 and T38H employees, who makes the final decision on a proposed suspension of 14 calendar days or less?

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A final decision on a proposed suspension of 14 calendar days or less will be made by the proposing official, or an official at any level in the supervisory line above the official who proposed the action.

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For T5 and T38H employees, who may propose an adverse action (supension of 15 calendar days, removal, or reduction in grade)?

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The official who may issue a letter of proposed adverse action to an employee must be at the division or service chief level or above in a field facility,

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For T5 and T38H employees, who makes the final decision on an adverse action (supension of 15 calendar days, removal, or reduction in grade)?

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The official who may issue a letter of decision must be at the director level in a field facility.

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Who can make the final decision on an adverse action resulting from investigations at Central Office (Not OIG)?

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Central Office or, if delegated, the facility director.

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Can the director designate another official to decide adverse actions?

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Yes. According to 5021, part I, chapter 1, paragraph 5d, the facility director is responsible for designating officials who may propose and/or decide disciplinary and adverse actions involving employees in the field occupying non-centralized positions.

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When can evidence be collected after an incident thay may result in a disciplinary action has occurred?

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It should be collected ASAP after the accident but may be delayed a reasonable amount of time to give the accused employee time to seek representation. This does not preclude the first level supervisor from making an initial inquiry. Resulting information from any investigation will be documented and statements may be given under oath.

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What material collected may not be be used to support a disciplinary or adverse action?

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Material that cannot be disclosed to the employee may not be used to build a case against him or her.

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Can an employee refuse to give a statement during an investigation?

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Generally no. Employees may claim a right to remain silent only when it may incriminate them criminally. They must state this as their reason.

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Who may determine if immunity from prosecution for failing to give a statement may be granted?

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OIG.

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What should happen to an employee under investigation or inquiry?

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Generally - nothing. They should remain in a duty and in a pay status unless there is an indication that their continued presence may pose a threat to employees, other, damage to government property, or other legitimate government interests.

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What options does a facility have when the presence of a person under investigation may present a danger to others or the facility?

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1. Detail to other duties where threat is minimized.
2. Allow employee to take leave (Annual, Sick, or LWOP)
3. Place on a paid, non-duty status as a last resort.

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When must an evidence file be established?

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An evidence file must be established before notice of an adverse action is issued to the employee.

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What must be included in an evidence file for adverse actions?

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1. All evidence upon which the proposed action is based
2. Written summary of the employee's oral reply or a written reply.
3. An index of all documents.
4. Any additional evidence collected after the notice is given (must be shared with the employee).

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Where is the table of offenses and penalties located?

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Appendex A of VA Handbook 5021 Part I

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What should the initiating official take into consideration when deciding the appropriate disciplinary action to take?

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Extenuating or mitigating circumstances or other contributing factors which may have some bearing on the situation.

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Are temporary employees entitled to written notice of proposed termination? What appeal rights do they have?

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Temporary employees hired under T5 do not have to receive a notice of proposed termination. They do not have a right to reply. They may file an EEO complaint but have no additional appeal rights.

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When type of appeal rights to term appointees have to a proposed termination?

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If termed during probationary period - same as any other propationary employee.

If termed after probationary period - same due process rights as permanent employees.

Can let the term appointment expire.

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When does a T5 Employee serve a probationary period?

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1. When appointed from DEU
2. Was reinstated (if did not complete probationary period)
3. Was transferred, promoted, demoted, or reassigned before completing probation.

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What exceptions are there to the mandatory probationary period?

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1. Excepted service employees that may be non-competitively converted to a career-conditional or career status serve their competitive service probationary period during the first year of their excepted appointment.

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What is the process of using prior federal civilian employment to fulfill probationary period requirements called? Where are regulations regarding this found?

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1. Tacking.
2. 5 USC 315.802

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When is a proposed notice of termination needed for an employee within their probationary period?

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Only required when terminating due to suitability issues (pre-employment).

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When can a probationary period file an appeal to MSPB?

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1. Only when their is alleged descrimination based on marital or partisan political status.

2. When 5 CFR 315.805 procedures are not used (pre-employment).

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Where can you go to find information about whether or not an employee as due process and appeal rights (Different than probation, definition of employee for adverse action rights)?

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5 USC 7511(a)(1)
1. Adverse action regulations
2. Look at definition of "employee."
3. Time is credited differently.

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What two thing MUST you look at before firing a T5 employee?

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1. Is the person on a probationary period?
2. Does the person meet the definition of employee under 5 USC 7511(a)(1).

Just because a person is on probation DOES NOT ALWAYS MEAN that they have no appeal rights.

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Where are the procedures for terminating a title 5 probationary non-"employee" located?

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5 CFR 315.804 and 315.805

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What must we do before terminating a T5 probationary non-employee?

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Give them written notification of why - that is all. No due process required.

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Who should sign the termination letter for a probationary non-"employee?"

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HRO or Facility Director only. NOT supervisor or service chief.

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Can a probationary non-employee use agency and negotiated greivance procedures?

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No

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What are your options for T5 disciplinary actions.

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1. Admonishment
2. Reprimand
3. Suspension (1-14 days).

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What rights does a non-probationary T5 employee have in regards to a propsed discipiinary action?

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1. Advanced written notice stating SPECIFIC reasons for the action.
2. Notice of right to review evidence
3. Reasonable time to reply (not less than 24 hours)
4. Right to be represented
5. Written decision with reasons.

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What is the difference between and admonishment and reprimand?

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Retention period in OPF.

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Is advanced notice required for admonisments and reprimands?

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Not by statute. However, local bargaining agreements may require it.

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What may an employee do if s/he feels that the admonishment or reprimand is unwarranted?

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1. File a complaint under negotiated greivances for actions covered by bargaining agreeement.
2. File a complaint under agency grievance procedures if the action is not covered by BU agreement.
3. File a complaint of discrimination (EEO).

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What are adverse actions?

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1. Suspensions of 15 days or more.
2. Reductions in grade or basic pay
3. Removals
4. Furloughs of 30 days or less.

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How much advanced notice must an employee receive before an adverse action is taken?

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30 days.

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How many days does a T5 employee have to respond to a proposed adverse action?

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7 days.

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What other rights does a T5 employee have in regards to receiving an adverse action?

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1. Right to review evidence.
2. Right to be represented
3. Right to a written decision with reasons for the action taken.

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Can the decision on an adverse action be delegated to a lower authority?

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No. The faciltiy director MUST sign all final decision letters. He may delegate the ability to hear the orgal reply to lower authorities, but this is not recommended.

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Describe the appeal options for T5 employees in regards to adverse actions.

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1. Appeal to MSPB
2. Negotiate greivance procedure (If not otherwise excluded)
3. EEO (Discrimination)
4. Federal coursts (after all others above)

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What information needs to included on a written notice of termination for probationary non-employees?

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Very basic information ONLY. No charges are necessary.

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Do probationary employees have greivance rights?

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No.

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What type of T5 employee is not entitled to a proposed action and reply period for disciplinary actions?

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Non-bargaining unit employees (if not a suspension).

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What type of notice does a temporary employee have to receive before being terminated?

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Only a letter giving him or her the date of his/her final day on the job.

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Where is the definition of an employee for the purposes of determining appeal rights under Title 5 located?

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5 USC 7511(a)(1)(A)(ii)

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Where is the law regarding probationary periods for T5 employees located?

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5 CFR 315.801

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Where is the law regarding creditable service for determination of completion of a probationary period located?

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5 CFR 315.802