Checklist for Proposals Under 5 Code of Federal Regulations (CFR) Part 752
- Does the nature of the employee's appointment require the use of 752 procedures?
(Note: For proposals to suspend for 14 calendar days or less, the regulations in 5 CFR Part 752, Subparts A and B must be followed. The regulations in 5 CFR Part 752, Subparts C and D apply to proposals to remove, suspensions for more than 14 calendar days, reductions in grade or pay, or furloughs for 30 calendar days or less.) - Does the proposal clearly identify the action that is being proposed and
accurately and simply state the supporting reasons/charges for the proposed
action?
(For suspension actions, the exact number of calendar days proposed must be specified in the proposal.) - Are the charge(s) supported by the specifications/documentation, and is
the documentation sufficient to support the charge when a specific standard
of proof is required, such as for theft, insubordination, assault?
If documentation cannot be made available to the employee and/or his or her representative, it should not be relied upon in proposing the action.
(Note: Whenever possible, avoid framing charges and specifications using terms requiring a specific standard of proof.) - If the action is proposed under 5 CFR 752 for performance-related problems, are the standards to which the employee is being held no higher than those cited in the official performance plan?
- If the action is proposed for performance related problems, has the employee
been provided with assistance and with an opportunity to improve?
(Note: For actions under 5 CFR Part 752, a reasonable opportunity to improve performance is not required, but it is recommended as good management practice and provides support for the penalty selected.) - Is nexus (a clear connection between the employee's misconduct and his job) established?
- Is the penalty discussion clearly distinguishable from the charges and specifications,
and have all pertinent "Douglas Factors" been considered and described?
(Note: Consideration of the Douglas Factors for suspensions of 14 days or less is not required but is recommended.) - If appropriate, is there evidence of progressive discipline? If the misconduct was serious enough to warrant a proposal under 5 CFR 752 C and D without lesser discipline, is explanation on the inappropriateness of lesser discipline provided?
- Does the penalty appear to be appropriate for the charges, and is the penalty consistent with the NIH Table of Penalties?
- Does the proposal make clear why the action would promote the efficiency of the Federal service?
- Does the case file contain clear copies of all pertinent documentation
relied upon for the action, as well as any current policies and regulations
cited?
(Note: It is recommended that materials in the case file be maintained in date order with the most recent document on the top of the file. This will make it easier to compile the required file in the event of an MSPB appeal.) - Does the proposal state that the employee has the right to make both an
oral and a written reply for consideration to a named deciding official and
state the time limits for doing so? For suspensions of 14 calendar days or
less, normally 7 calendar days and not less than 24 hours are allowed for
the reply; for suspensions of 15 calendar days or more, normally 15 calendar
days and not less than 7 are allowed.
(Note: For proposals under 5 CFR Part 752 C and D, the employee must be afforded 30 calendar days advance notice before a decision can be effected! If the notice period is shortened under the "crime provision", the reasons for the proposed action and the evidence must support the use of that provision.) - Does the proposal specifically describe the employee's rights to representation;
to review the material relied upon to propose the action, to prepare an answer,
and to furnish affidavits and other documentary evidence of support of his
or her reply; and to a reasonable amount of official time to prepare and present
a response?
(Note: The management official responsible for approving any request for official time should be specified and the employee should be advised where the supporting documentation may be reviewed.) - Does the proposal inform the employee of his/her duty status during the advance notice period?
- Was the proposal notice properly delivered to the employee?
(Note: The employee should sign acknowledging receipt, or if the employee refuses to do so, a witness should sign acknowledging the employee's receipt. If the proposal is mailed, it should be mailed both regular U.S. mail with a Certificate of Mailing and Certified Return Receipt Requested. Certification of receipt and a copy of the Certificate of Mailing must be retained for the case file.)
Helpful Tips:
- Consider whether alternative methods (such as, alternative discipline or last chance agreement) could address the employee's misconduct.
- Consider whether a referral or contact with EAP, OMS, OEO, etc. should be made prior to the initiation of a proposed adverse action.
- The proposal should avoid "piling on" of charges for the purpose of producing a more severe penalty; for example, repeating the same order to an employee several times after he or she has initially refused to obey and justifying a more severe penalty by charging multiple acts of misconduct.
- If one charge contains multiple parts, all of those parts must be supported by documentation. For example, if the employee is charged with disrespectful, threatening, and disruptive conduct, the documentation would have to clearly prove all of those components of the charge.
- Any citations from law or regulation should be current and pertinent to the charge.
- In some cases, MSPB/EEOC cases should be researched prior to framing of the charges and selection of the penalty.
- Any specifications should clearly identify with the charge they support, and they should clearly address the who, what, when and where of the incident described.
- Any witness statements/affidavits should be signed and they should clearly describe the details of the incident.
- The employee should be offered the services of the Employee Assistance Program in the memorandum of proposal.
For Medical/Reasonable Accommodation Issues:
- If there are any medical issues that have been raised by the employee, the proposal should reflect that those issues were considered and that the employee was afforded an opportunity to provide medical documentation.
- If the employee requested reasonable accommodation prior to the initiation of a proposed adverse action, was it afforded to the employee? If so those efforts at accommodation should be cited in the proposal memorandum.
- If the accommodation requested was not considered reasonable, have the barriers to affording the accommodation (for example, specific budgetary or operational concerns) been thoroughly considered and documented?
- Has reassignment or a voluntary change to lower grade been considered if the employee cannot be accommodated in his/her own position? Legitimate consideration for reassignment to a vacant position for which the employee is qualified is a requirement under current EEOC guidance and case law.
- References:
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA;
NIH Manual Chapter 2204 - Reasonable Accommodation
