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Suspension and Removal Actions

Non-probationary employees have both procedural and substantive rights before the Agency can suspend or remove you. In regards to procedural rights, the Agency is required to notify you of the specifics of what you are charged with. The Agency is also required to give you at least 30 days prior notice (unless there is a commission of a crime) before they take action. In addition, you have the right to provide a written or oral reply to the charges. In preparation for that reply, you have the right to receive the information relied upon in proposing the action.

Once a final decision has been made and the case proceeds to a third party (arbitration, MSPB), the burden is on the Agency to prove three things:

First, that the conduct complained of did in fact occur. If the FAA fails to prove that element then there is no further analysis. If they prove some but not all of the conduct accused of occurred, that will impact the other elements the Agency must prove.

Second, they have to prove there was a nexus or connection between the conduct and the mission of the service. This element generally is only contested when there is off duty conduct.

The third element is whether the penalty given is appropriate. The seminal case in determining the appropriateness of the penalty is Douglas and the factors cited in that case are commonly referred to as the Douglas Factors. They are:

the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

  • the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
  • the employee’s past disciplinary record;
  • the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  • the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
  • consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  • consistency of the penalty with any applicable agency table of penalties;
  • the notoriety of the offense or its impact upon the reputation of the agency;
  • the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  • potential for the employee’s rehabilitation;
  • mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
  • the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

The Agency is not required to consider all of the factors; rather they have to show that they considered them. It is also important to note that if the Agency has not proved all the charges, then the third party hearing the case is required to reconsider the appropriateness of the penalty in light of the reduced charges.

If the Agency does not meet its burden in proving the three components of the action- conduct, nexus and penalty, then the penalty imposed should be reduced if not totally eliminated.

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