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B. Disciplinary versus Non-Disciplinary Adverse Actions.

1. Adverse actions for disciplinary reasons are appropriate:

a. When previously administered disciplinary actions have not served to prevent repetition of misconduct;
b. When employee conduct is sufficiently serious to warrant termination of the employment relationship (e.g., serious violations of the Federal or State Criminal Code, corruption, substantive conflict of interest, physical assault, etc.); or
c. When required by statute.
2. Adverse actions for non-disciplinary reasons include:
a. Failure to accept geographical or organizational reassignment;
b. Inefficiency in performance of duties (in cases where procedures under 5 CFR, Part 432, Performance-Based Reduction in Grade and Removal Actions, are not applicable1);
c. Mental or physical disability;
d. Failure to maintain a regular tour-of-duty when absences are caused by illness;
e. Failure to retain required qualifications;
f. Demotion resulting from a reclassification action for annual employees, which results in a loss of grade or pay, but no entitlement to grade retention;
g. Reduction in the number of hours of duty per week for a part-time employee; or
h. Furlough because of lack of funds or work.
C. Adverse Action Procedures. The regulatory and statutory requirements when taking adverse actions under Title 5, U.S.C., Chapter 75, Adverse Actions, and 5 CFR, Part 752,Adverse Actions, are provided below. Adverse actions are recorded permanently in an employee's Official personnel File (OPF.) The adverse action process involves the issuance of a proposal and a decision.

  1. Letter of Proposed Action.

  1. The letter of proposed action must state the specific action proposed. Caution should be exercised in deciding on the specific action proposed since the decision in the case cannot impose a more severe penalty than originally proposed.

  1. It must clearly state the reason(s) for proposing the action and include the specific information that supports the reason, such as times, dates, and circumstances.

  1. If the reason(s) involves conduct off the job, the proposal letter must state the nexus (connection) to the efficiency of the service.

  1. It shall inform the employee that, if the proposed action is taken, it will not become effective earlier than 30 days from the date of receipt of the notice. (This 30-day period is called the “advance notice period.”)

  1. It is highly recommended that the applicable “Douglas Factors” be addressed in the proposal letter. These factors are listed in Appendix A.

  1. The letter shall inform the employee of his/her right to:

  • Review the material supporting the reason(s) for the action proposed in the notice. (Copies of all supporting material may be enclosed with the letter of proposal or be readily available to the employee.)

  • A reasonable time, normally 15 days, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.

  • Be represented by an attorney or other representative.

g. It shall inform the employee of his/her work status during the 30-day advance notice period. Under ordinary circumstances, an employee whose removal or suspension, including indefinite suspensions, has been proposed shall remain in a duty status in his or her regular position. In those rare circumstances when the agency determines that the employee’s continued presence in the workplace during an adverse action notice period may pose a threat to the employee or others, result in loss or damage to Government property, or otherwise jeopardize legitimate Government interests, management may elect one or a combination of the following alternatives.

  • Assign the employee to duties where he/she is no longer a threat to safety, the BPA mission, or Government property;

  • Allow the employee to take leave, or carry him/her in appropriate leave status (annual, sick, leave without pay) with the employee’s consent. If the employee is absent from the work site without approved leave, the absence may be recorded as absence without leave (AWOL);

  • Use authority to curtail the notice period if BPA has reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed; or

  • Place the employee in a paid, non-duty status for such time as is necessary to effect the action, based on the authority in 5 CFR, Part 752. THIS IS AN OPTION OF LAST RESORT. If an organization wishes to place an employee in a paid, non-duty status under5 CFR, Part 752, the procedures in Appendix B must be followed.

  1. It shall clearly indicate that the letter is a proposal, and that a final decision will not be made until after receipt of the employee's reply or after expiration of the time period for reply.

  1. It shall also inform the employee that he/she has a reasonable time (e.g., 15 days) in which to answer orally and/or in writing. Also, the following shall be addressed in the letter: 1) the name of the official to whom any written reply should be sent; 2) the address to which it should be sent; and 3) if an oral reply is desired, to whom a request for an oral reply should be sent. The person designated to receive the employee's written reply and hear the employee's oral reply shall have the authority to make a final decision on the proposed adverse action. Oral Reply Guidelines are in Appendix C.

  1. It shall also state that if the employee wishes BPA to consider any medical condition that contributed to his/her conduct/behavior, performance, or leave problem, the employee shall be given a reasonable time to furnish medical documentation (as defined in 5 CFR 339.104).

2. Letter of Decision.

  1. The letter of decision shall be issued as soon as practical after the receipt and consideration of the employee's reply or after expiration of the time allocated for the employee's answer to the Letter of Proposed Suspension. In arriving at the decision, only the reason(s) specified in the notice of proposed action along with supporting documentation, and any response by the employee and/or his/her representative will be considered.

  1. The decision shall state which reason(s) and specification(s), if applicable, were sustained (i.e., which were determined to be valid), if the proposed action is determined to be warranted, and the effective date of the action. If a reason was not addressed in the proposal letter, it may not be considered and included in the decision letter. It is also highly recommended that the applicable “Douglas Factors” be addressed in the decision letter.

  1. The decision shall contain information regarding applicable grievance, appeal and representation rights, and the name of the individual whom the employee may contact concerning appeal rights and procedures.

  1. The effective date of the action. The decision must be delivered to the employee at or before the time the action becomes effective.


  1. Purpose. Many organizations have reported success using alternatives to traditional disciplinary actions, as appropriate. The key consideration is what action will be most effective in correcting employee conduct and behavior while contributing to the efficiency of the service. Traditional penalties sometimes have the effect of compounding problems (e.g., suspending someone from duty and pay for not showing up to work). Alternative discipline (AD) permits the use of creative solutions while maintaining the effect of progressive discipline if there is future misconduct. In addition, although AD is offered solely at the discretion of management, it provides employees with an opportunity to become actively involved with supervisors/managers in fashioning creative acceptable agreements to resolve

work-related issues.

  1. Employees Covered. Employees are covered as indicated in section III, above, though management has sole discretion to allow resolution of unacceptable conduct issues through AD agreements. These procedures confer no additional rights to employees beyond those already established.

  1. Matters Covered. Except for those matters specifically excluded below,

supervisors/ managers may consider offering AD agreements in instances where some action other than traditional disciplinary action is likely to effect a positive change in an employee’s behavior. When considering whether to enter into an AD agreement, supervisors/managers should consider whether the agreement would promote the efficiency of the service, and not adversely affect other employees.

Supervisors/ managers may consider using an AD agreement as a means for forming a “last chance” agreement in lieu of removing an employee from BPA for unacceptable conduct.

AD agreements should not be used to address instances of egregious activity (such as criminal conduct or offenses prescribed in a statute), performance-based actions, or where the employee will not admit to having engaged in the identified unacceptable conduct.

  1. Procedures. Before entering into an AD agreement with an employee the supervisor/manager must first seek assistance from the Employee Relations staff. All agreements must be reviewed by the Employee Relations staff to ensure that the conditions of the agreement are in compliance with AD procedures. AD agreements may be used as follows:

1. In Lieu of a Proposal to Discipline. The proposing official completes an AD agreement in lieu of proposing disciplinary action. In this type of agreement, the proposing official identifies the disciplinary action that would be proposed if the terms of the agreement were not fulfilled by an employee.

An employee is provided with an opportunity to review the agreement to make an informed choice between traditional discipline and AD. The proposing official and the employee should meet to discuss the expectations of the agreement and make any agreed upon amendments. The agreement shall note the employee’s right to consult with a union or other representative before voluntarily choosing AD.
An employee voluntarily agrees to waive entitlement to certain disciplinary procedures normally required of management, except for the employee’s right to a representative, as outlined in section XV, below. If the employee fails to fulfill the conditions of the agreement, the disciplinary action identified in the written analysis could be imposed immediately by management. The proposing official must ensure that the rights being waived are explicitly spelled out in the agreement. (See the MAS Handbook for a sample agreement.)
2. After a Proposal to Discipline Has Been Initiated. The deciding official may offer an AD agreement after the proposal for discipline has been issued, but prior to the issuance of a decision notice. For example, in a case involving a suspension, the deciding official may find that, even though the disciplinary action is warranted based on the circumstances, the employee has expressed significant remorse for his/her actions during the employee’s response to the proposed disciplinary action. The deciding official may then agree to hold the suspension in abeyance pending successful completion of the AD agreement. If the employee fully complies with the terms of the agreement, the suspension will be dealt with in the manner specified in the agreement (e.g., canceled, left in the OPF as a “paper suspension”, etc.). If the employee fails to satisfy the terms of the agreement, the suspension will be immediately imposed. (See the MAS Handbook for a sample agreement.)
E. Manager and Employee Responsibility. An employee may express a preference to the proposing or deciding official for entering into an AD agreement. However, the supervisor/manager must agree as to whether an AD agreement is an effective means for correcting the employee’s unacceptable conduct. Both the supervisor/manager and employee are responsible for adhering to the terms and conditions in the AD agreement. The employee must comply with the corrective measures set forth in the agreement. The supervisor/manager must ensure that those measures needed for reform are reasonable and within the capability of the employee to accomplish and do not interfere with the efficiency of the service.
F. Alternative Discipline Options. The AD agreement must specify the terms and conditions for successful completion of the agreement. There are numerous types of alternative “penalties” that can be agreed upon, provided they are not contrary to law or regulation (e.g., contributing work time without compensation). Examples of possible alternative “penalties”, depending upon the nature and seriousness of the offense, include, but are not limited to, any combination of the following:

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