Guidance on Matters Pertaining to an Employee's Reply to a Proposed Adverse Action
Employees should specify in writing if they designate a representative. Disallowance of a representative, due to a conflict of interest for example, is rare. If a deciding official believes he or she has a valid basis for disallowing a representative, guidance should be obtained from an IC HR advisor. The reasons for disallowing a representative should be documented.
Employees may request an extension of the time period to reply. Requests should be in writing, addressed to the deciding official, and address the reasons why more time is needed. Reasonable extension requests should be granted whenever possible. If the employee requests an extension of time to reply, and the request is not granted, there should be a valid reason for the denial. Approvals and denials of requests for extension should also be in writing and maintained in the case file.
The agency official who hears the employee's reply should have the authority to either make or recommend a final decision on the proposed action.
If an employee cites a physical or mental condition as an explanation or a mitigating factor, the employee should be advised in writing that he or she may provide medical documentation which explains how the medical condition caused, or is related to, the subject misconduct or performance problem. The employee should be afforded a reasonable amount of time to provide any medical documentation and that information, along with any request for reasonable accommodation should be considered and addressed by the deciding official.
The deciding official should impartially review and give full consideration of all the evidence of record, including any reply the employee chooses to make. If the employee fails to reply, one should not assume that the employee is admitting guilt. The deciding official must still review the proposal to assess the charges and the level of penalty proposed in order to make a decision.
An oral reply represents an employee's opportunity to personally present the deciding official with information to consider in making his or her decision. The deciding official should remain calm and neutral, and listen attentively. There should be no argument or discussion about the merits of the proposal.
The deciding official should not voice a decision at the time the employee makes his or her reply, even if requested to do so. The employee should be informed that the deciding official will issue a written decision.
The deciding official must not base his or her decision on any material that the employee was not informed of or allowed to review.
The oral reply should be summarized in writing by the official hearing the reply. The summary should be shared with the employee and/or his or her representative with a request that they review those notes and verify their accuracy by their signature. This document, and any written reply submitted, must be made part of the official case file.
