This IRM states the policy of the IRS with respect to taking and processing disciplinary suspensions of fourteen (14) calendar days or less. Under regulations prescribed by the Office of Personnel Management (OPM) an employee may be suspended for fourteen (14) calendar days or less only for such cause as will promote the efficiency of the Service.

To the extent this IRM conflicts with the National Agreement (NA), the provisions of the NA shall prevail for bargaining unit employees.

This IRM section covers only disciplinary suspensions of fourteen (14) calendar days or less.

Non-disciplinary actions and lesser disciplinary actions are covered in IRM 6.751.1.

Suspensions of more than fourteen (14) calendar days or other adverse actions are covered in IRM 6.752.2.

The following topics are covered in 6.751.1 and should be used/referenced if management determines a suspension of fourteen (14) calendar days or less is effected:

Bargaining unit employee – an employee included in a bargaining unit certified by the Federal Labor Relations Authority (FLRA).

Complainant – an individual who files a complaint typically through the Equal Employment Opportunity (EEO) complaint process.

Current continuous appointment – a period of employment or service immediately preceding an adverse action in the same or similar positions without a break in Federal civilian employment of a workday.

Day – a calendar day.

Deciding Official – the management official designated to make the final decision on a disciplinary suspension.

Discipline – measures intended to correct employee misconduct that adversely affect the efficiency of the Service and to encourage employee conduct in compliance with the standards of conduct, policies, goals, work procedures, and office practices of the IRS and the Federal Service.

Employee – an individual in the competitive service who is not serving a probationary or trial period under an initial appointment, or who has completed one (1) year of current continuous employment in the same or similar position under other than a temporary appointment limited to one (1) year or less.

Grievant – an individual who files a grievance through the internal grievance process.

Nexus – a reasonable connection or factual relationship between the reasons for the action taken and the efficiency of the Service. Nexus is presumed if the misconduct occurs while on duty or on government premises but must be established if the misconduct occurs while the employee is not on duty or on government premises.

Notice Period – the period of time that begins the day after the date an employee receives a written proposal of an action based on misconduct and which ends on the effective date of the action, if effected.

Offense – a cause of action based on an employee’s delinquency or misconduct.

Oral Reply Officer – agency designated official with authority to either make or recommend a final decision on a proposed action.

Pay – the rate of basic pay fixed by law or administrative action for the position held by an employee.

Prior Offense – a prior cause of action for which a disciplinary penalty has been imposed and which is still a matter of record.

Progressive Discipline – imposition of the least serious disciplinary or adverse action applicable to correct the issue or misconduct with penalties imposed at an escalating level for subsequent offenses. (See IRM 6.752.1.6). http://publich.no.irs.gov/IRM/P01/PDF/73276K07.PDF

Proposing Official – management official who has the delegated authority to issue a notice of proposed disciplinary action. (See IRM 1.2.2.45.6).

Substantial Evidence – degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is the standard of proof the Agency must meet when taking a disciplinary action against an employee.

Suspension – the placement of an employee, for conduct reasons, in a temporary status without duties or pay. Suspensions served solely on non-duty days do not meet the definition of suspension as contained in 5 U.S.C. 7501(2)

A suspension of fourteen (14) days or less may only be effected against an employee for such cause as will promote the efficiency of the Service.

A disciplinary suspension is used to correct serious or repeated misconduct, or violations of an Agency rule or regulation, or administrative instructions and procedures. A suspension is an appropriate disciplinary measure when less severe disciplinary actions fail to correct an employee’s misconduct, or when the gravity of the offense warrants stringent corrective action.

In preparing any advance notice of proposed disciplinary action, care must be taken to ensure that the employee is aware that a final decision has not been made. Rather the final outcome will be determined once any/all replies submitted are considered.

As with any action taken against an employee, the Agency has the burden of proof. In a disciplinary action, the Agency must establish by "substantial evidence" that the employee engaged in the misconduct. Substantial evidence is defined as that "degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree."

In the event an employee engages in off duty misconduct, the Agency may take an action against that employee for the off duty misconduct only if a nexus (connection) can be established between the misconduct and the efficiency of the Service. In other words, there must be a connection between the misconduct and the Agency’s ability to successfully carry out its mission. In taking actions based on off duty misconduct, such things as adverse publicity, the notoriety of the offense, strained relations or apprehension on the part of fellow employees, or evidence or indication of dishonesty may be a cause and should be considered.

If the employee engages in misconduct while on duty and/or on government premises, nexus is generally presumed and need not be specifically stated in any letters issued to the employee.

Regulatory (5 C.F.R. 752.203) and statutory (5 U.S.C. 7513) requirements entitle employees to the following rights

The agency shall maintain copies of the material relied upon as specified in 5 U.S.C. 7503(c) and shall furnish the material upon request as required by that subsection. See Exhibit 6.752.1-1 for a sample letter for releasing material relied upon if the letter contains tax information.

As outlined in IRM 6.751.1, Alternative Discipline (AD) refers to an option other than traditional discipline for misconduct warranting a written reprimand or disciplinary suspension of fourteen (14) days or less. AD must be offered to Bargaining Unit (BU) employees if management determines a letter of reprimand or suspension of one (1) to fourteen (14) calendar days will be imposed. If management believes AD is a viable option to adequately correct the employee’s misconduct, discussions must occur prior to entering into the traditional disciplinary process, i.e., prior to the issuance of a proposal to suspend. As noted in IRM 6.751.1, while the AD process was negotiated with NTEU, management may elect to apply the concept of AD if a non-bargaining unit employee engages in an action for which he/she could be disciplined. Application of the process for a non-bargaining unit employee is up to the management official who made the recommendation for discipline.

While management has a contractual obligation to offer AD to the BU employee, there is no contractual obligation to accept the alternative discipline made by the employee or his/her representative.

AD options should not be used in combination with traditional discipline, such as civic work plus a one (1) day suspension or preparing a research paper and issuance of a letter of reprimand. One of the objectives for AD is for it to be an alternative to the traditional penalties. Using a traditional penalty along with an AD activity defeats this objective. Another objective of using AD is to have the alternative option relate to the misconduct in some fashion so that the misconduct is rectified. Management, in conjunction with guidance from the servicing Labor Relations/Employee Relations (LR/ER) Field Operations specialist, should ensure that the alternative option ties back to the underlying misconduct. For example, an employee who is being disciplined for attendance related issues offers to donate leave to the leave bank. This offer relates to the underlying misconduct and should be considered as a viable offer. When considering the activities possible under the AD agreement, General Legal Services (GLS) has provided guidance that the use of community service is an option for AD, with no potential for overtime or liability consequences. However, GLS has suggested that specific language be inserted into the AD agreement to cover these issues. Complete discussions of the community service, overtime, and liability issues may be found at http://hco.web.irs.gov/pdf/alter-discpl.pdf

When preparing an AD agreement or settlement agreement, a paragraph concerning the "Older Worker Benefits Protection Act" http://www.eeoc.gov/abouteeoc/35th/thelaw/owbpa.html must be included in certain situations (e.g., the employee is age 40 or over)

Refer to the National Agreement, Article 38, Section 2 http://hco.web.irs.gov/apps/na/contract06/index.htm for a complete discussion of AD. IRM 6.751.1 includes a variety of exhibits to provide samples for both bargaining and non-bargaining employees AD agreements and letters. These are referenced in IRM 6.751.1, Exhibits 6.751.1.14-1 through 6.751.1.15-3.

If the employee does not comply with the AD agreement (he/she does not meet the requirements agreed upon), management should impose the traditional disciplinary action. Issuance of an advance notice is not required in this case. Instead, a decision letter would be prepared and issued outlining the reasons for the suspension. An example would be: "You failed to donate leave to the leave bank as agreed upon in Section X.X of the alternative discipline agreement you signed and dated on (date)." Pursuant to the terms of the AD, the employee may not grieve the suspension. However, the employee may file a grievance on whether or not he/she failed to comply with the terms of the AD agreement.

Once management has determined administrative action is appropriate, the Labor Relations/Employee Relations (LR/ER) specialist assigned the case should conduct appropriate research to ensure the recommended course of action is consistent with the Guide to Penalty Determinations, past practice, and current case law.

Among the tools available for the LR/ER specialist is the Automated Labor Employee Relations Tracking System (ALERTS), CyberFEDS, and decisions made by the Merit Systems Protection Board (MSPB) or FLRA.

If the recommendation made by management is inconsistent with similar cases identified via ALERTS research or existing case law, the specialist should consult with his/her lead or supervisor. In that case, the specialist should have a subsequent discussion with management outlining the results of the research and explaining the pros/cons of pursuing the recommendation. For example, management decides to propose removal for an employee’s continued tardiness. The assigned LR/ER Specialist conducts research and finds that the recommended course of action is inconsistent with similar cases and that case law decisions would not support a removal given the facts of the case. The specialist should, after consultation with his/her lead and supervisor, initiate discussions with the proposing official to explain the research conducted and the potential outcome if management decides to propose removal. The discussion and results should be documented in the case file by the specialist. Ultimately, the decision on the level of discipline is management’s. The role of an LR/ER specialist is advisory.

As noted above, an employee against whom a suspension is proposed must be given advance notice. A sample proposal letter is included as Exhibit 6.752.1-2. The notice shall include:

Tax returns or return information may not be disclosed in proposing or effecting discipline, except as provided by the specific provisions of Section 6103 of the Internal Revenue Code. To the extent that a return or return information is relied upon in proposing or effecting discipline, the confidentiality of the information must be safeguarded.

Under the provisions of Section 6103(b)(1), a tax return is defined as "any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under the provisions of this title which is filed with the Secretary (of the Treasury) by, on behalf of, or with respect to any person and any amendment or supplement thereto, including supporting schedules, attachments or lists which are supplemental to, or part of, the return so filed" .

Return information is defined as"a taxpayer’s identity, the nature, source or amount of his/her income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over assessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence of liability of an person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition or offense, and any part of any written determination or any background file document relating to such written determination which is not open to public interpretation."

Section 6103(l)(4)(A) of the Internal Revenue Code permits the disclosure of returns or return information to an employee or former employee, or to his/her duly authorized representative, when, upon written request, the appropriate official judges the disclosure to be relevant and material to a proceeding involving personnel or claimant representative matters. Since disciplinary or adverse actions are proceedings involving personnel matters, a duly authorized representative may be authorized access to return or return information if such access is or may be relevant and material to the disciplinary or adverse action. A request for disclosure under 6103(l)(4)(A) will be evaluated by the appropriate official with delegated authority.

When including or referring to return and return information in disciplinary letters, code the return information, attach a key, and indicate that the employee is restricted from making disclosures of tax information without proper approval.

A sanitized copy of the evidence file is normally necessary when an action is appealed to a third party. At the proceeding or hearing, an employee or an employee’s representative may use the sanitized tax information contained in the evidence file submitted by the Service to the third party. Other tax information may not be disclosed by the employee, or the employee’s representative, unless a separate written request has been submitted to and approved by the Service.

In the event that disclosure of the tax information would seriously impair Federal tax administration, release of tax information to an employee and the authorization of disclosure of tax information by the employee may not be granted.

When an employee’s own tax matters are an issue in a disciplinary action under appeal to a third party by the employee, disclosure of the employee’s tax records to the third party is permissible.

When an employee’s failure to comply with the tax laws is a reason for taking a disciplinary or adverse action, use the following in the remarks section of the Personnel Action; "Reason for action – Violation relating to IRM 6.751.1.22."

Ensuring that charges are properly framed is crucial when preparing an advance notice. Failure to properly frame the charges or provide sufficient specificity when describing the misconduct may result in the Agency’s inability to meet the burden of proof required by statute. Thus caution should be exercised when deciding upon the charge(s).

Caution should be exercised when using terms in the charge that place additional burdens on the Agency to prove the charge. Terms such as "falsification," "insubordination" and "theft" will require proof that the employee’s actions were intentional. Terms such as "threat " and "sexual harassment" also place higher burdens on the Agency. In the case of "threat" the factors outlined in the Metz case must be proven. The "Metz test" comes from an MSPB case decision [Metz v Department of Treasury 23 MSPR 576 (1984)] and requires consideration of the following:

Charging an employee with "sexual harassment" requires the Agency to prove that the misconduct rose to the level of sexual harassment. Alternative charges may be more appropriate and should be considered for use when proposing an action. Examples of alternative charges include:

Specifications must be descriptive enough so that the employee can understand the full nature of the charges. Lack of specificity can result in reversal if the employee proves that he/she was unable to prepare an adequate defense because he/she did not understand the nature of the charges. In a decision from the Merit Systems Protection Board (MSPB), Mason v Department of the Navy 70 MSPR 584, 586-89,the Navy’s action was reversed because the appellant was not given sufficient information to mount a meaningful defense and appellant did not receive detailed notice of the alleged misconduct prior to the hearing. The underlying specifications referenced racial slurs allegedly made by Mason (the appellant). The advance notice did not provide any details of when or where the slurs were allegedly made. The appellant made several efforts during the discovery process to find out answers to the questions. Nothing was provided by the Agency until the matter was appealed to MSPB. At which time, the Agency produced testimony from witnesses to the alleged events. The Board determined that the Agency failed to give the appellant adequately detailed notice prior to the hearing of the alleged misconduct. This in turn, prejudiced his ability to mount a meaningful defense and denied him due process. This case illustrates the importance of ensuring the employee has sufficient information to defend him/her self against the charges.

The file must include evidence that supports the reason(s) and specification(s) cited in the advance notice. The evidence must allow the Agency to meet the burden of proof established by the statute. Evidence may be in the form of: documents related to the misconduct at issue in the advance notice, including documents which place the employee on notice of the proper conduct; recordings of conversations if the misconduct relates to recorded telephone conversations; statements or affidavits from witnesses; or other internal documents. Evidence may also be in the form of witness testimony provided at a hearing.

The agency has the burden to prove that delivery and receipt of the advance notice of proposed action was timely.

Normally, employees will remain in a duty status in their work areas during the advance notice period unless the employee is a seasonal employee and would otherwise be placed in non-duty status due to lack of work or at the employee’s own request.

Once the employee chooses a representative, he/she should advise the proposing official, in writing, of his/her choice of representative. In the event the employee’s choice of representative causes a conflict of interest or position, the proposing official should consult with the supporting LR/ER office. If it is determined that the representative would cause a conflict of interest or position, the following procedures must be followed

The time periods must be enforced to avoid prolonging the advance notice period any more than is absolutely necessary. The proposing official should consider reasonable requests for additional time to designate another representative as employees may encounter difficulties attempting to secure representation.

Individual(s) duly designated/authorized to represent an employee in a disciplinary action are free to exercise their functions as a representative without fear of reprisal, intimidation, or coercion. Further, if the duly designated/authorized representative is an IRS employee, the representative:

Employees facing an adverse action have three (3) options to reply to the proposed action. They may submit a written reply, and/or request an oral reply. The employee may elect to do both (a written and an oral reply), one (a written reply or an oral reply), or neither.

The reply (whether written, oral, or both) is the employee’s opportunity to provide the proposing official with his/her uninhibited defense, including any denial of the reasons for the proposed action, present any mitigating factors they wish considered, and/or make a plea for a less severe action. The information provided by the employee or his/her duly authorized representative must be reviewed and considered by the deciding official before making a decision.

As discussed in 6.752.1.17(2) above, an oral reply is an employee’s opportunity to present an uninhibited oral defense against the charges stated in the proposed adverse action. The Agency does not argue or justify its actions during the reply, the oral reply is not a "formal" hearing, and the oral reply officer should not permit the proceedings to become adversarial.

The procedures for an oral reply are as follows:

In a disciplinary action, the proposing official will generally serve three (3) roles. He/she proposes the action, conducts the oral reply by serving as the oral reply officer and makes a decision after the reply(ies) has been received or the time period for the reply(ies) have expired. However, in extraordinary situations, the proposing official may designate another manager to serve as the oral reply officer. If another manager is designated to serve as the oral reply officer, that manager must be a higher grade and/or rank than the employee making the reply.

The primary function of the oral reply officer is to conduct an orderly proceeding, encourage an open and frank proceeding, and develop or as necessary, clarify by non-provocative questions on factual matters on which an equitable determination may be made. While the employee may be highly emotional during the proceedings, the oral reply officer must carefully guide the employee into rational discussions of the matters the employee wishes to address. Thus it is imperative that the oral reply officer avoid any appearance or inference of an adversarial proceeding. If questions are needed for clarification purposes, those questions should be asked to elicit information only.

To prepare for the oral reply, the oral reply officer should – at a minimum:

Requests for postponement of the oral reply should be considered. However, if the request would cause a significant delay in a final decision (e.g., a request to postpone for more than 60 calendar days) should be granted in rare circumstances. If a request for a postponement is denied all or in part, the oral reply officer should note the reasons for the denial in the file.

Once an oral reply has been scheduled, a summary of the oral reply or transcript (if a court reporter is used) will be provided to the employee and/or his/her representative.

In deciding the action, the deciding official must consider the Douglas Factors. The Douglas Factors are included in IRM 6.752.1, as Exhibit 6.752.1-6 and as part of the Guide to Penalty Determinations http://hco.web.irs.gov/pdf/irspenaltyguide.pdf . The deciding official need not prepare a written document addressing each of the individual factors; however, it is recommended that the deciding official sign a document similar to the exhibit after he/she completed review/consideration of those factors.

The final decision notice should include the following (see Exhibit 6.752.1-7):

Employees in the bargaining unit may file a grievance, in accordance with the collective bargaining agreement, within fifteen (15) calendar days of the effective date of the suspension. The grievance is filed at the last step of the grievance process. It is important to note that if management decides to impose a suspension of between four (4) and fourteen (14) calendar days, the suspension may be held in abeyance pending the final decision from an arbitrator. To place the action in abeyance the grievance must be filed within seven (7) work days of receipt of the decision and arbitration must be invoked within seven (7) work days of the grievance response.

Employees who are not in the bargaining unit may file a grievance in accordance with the Agency grievance procedures outlined in IRM 6.771.1, within fifteen (15) calendar days of the effective date of the suspension. (NOTE: there are no "stay" provisions for a suspension imposed on a non-bargaining unit employee.)

If a claim of discrimination is raised, the employee and/or NTEU may appeal the claim of discrimination through the EEO complaint process. Such appeal must be filed within forty-five (45) calendar days of the effective date of the suspension.

Once a decision has been made, it is not uncommon for the agency, employee and/or representative to discuss the possibility of resolving the case. This can be done before an appeal or after the employee (or representative) has filed an appeal.

If the discussions occur before an appeal is filed and General Legal Services (GLS) is not involved, typically the deciding official has the delegated authority to settle cases he/she decided. However, if an appeal has been filed and GLS is involved, the first level executive has the delegated authority to settle the case.

The purpose of any settlement is to resolve the matter without the costs and hazards of litigation and usually avoid attorney fees. For example, management decides to impose a suspension of three (3) calendar days on an employee for multiple instances of absence without leave (AWOL). The parties could agree to impose a suspension of one (1) calendar day instead. The employee would waive his/her right to appeal the action in any forum and the one (1) day suspension would be a matter of record which could be used in the event the employee engaged in misconduct in the future. Exhibit 6.752.1- 8 provides sample language often found in settlement documents. The sample reflects a settlement reached after a case is appealed to arbitration.

After the draft settlement document is reviewed via internal review processes, (GLS) should be consulted before providing the settlement or last chance agreement to management for review and signature. If the decision was appealed to a third party (binding arbitration), GLS must be involved in the settlement process and generally will draft the settlement language.

All material used to support the action must be placed in a file before preparation and issuance of a notice of proposed adverse action. The file must include documents used by the proposing official to support the reason(s), supporting evidence of any cited aggravating circumstances or nexus that are cited; and any TIGTA Reports of Investigation or exhibits. The following items should be included in the file:

Copies of the file are made available, upon request, to the employee and/or his/her authorized representative. Caution must be exercised when releasing tax information. Refer to 6.752.1.11.

The file/documents listed above must be maintained by the Service and furnished to the Merit Systems Protection Board upon its request.

the Agency agrees to remove the Standard Form (SF) 50 three (3) day suspension action, effective [dates], from Grievant’s Official Personnel File (OPF) and replace it with a SF 50 placing Grievant on a one (1) day suspension from duty and pay for [date]. The Agency will place Grievant in full pay status for [the two (2) dates from original suspension]. The amount paid to Grievant for this period will include any applicable interest accumulated. In addition, this amount will be subject to all appropriate tax and payroll deductions. The Agency will take reasonable efforts to process Grievant’s back-pay payment within sixty (60) days of the execution of this Agreement; however, the parties acknowledge that it may take longer.

The Grievant and the Union agree to voluntarily withdraw this grievance as described above as the Suspension Arbitration as well as all other pending grievances, from the arbitration process, with prejudice. If the employee is age 40 or over, include the following language as required by the Older Workers Benefit Protection Act:(http://www.eeoc.gov/abouteeoc/35th/thelaw/owbpa.html

By signing this Agreement, Employee waives all rights and claims under the Age Discrimination in Employment Act (ADEA) of 1967, as amended, as to the above-referenced matter. To ensure compliance with the requirements of the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f), by signing this Agreement, Employee agrees that he/she:

The Employee understands that pursuant to 29 CFR 1625.22(e)(6), he/she may sign this Agreement before the end of the twenty-one (21) calendar day time period set forth in subparagraph (7) above, so long as his/her decision to accept a shortening of the time is knowing and voluntary and is not induced by the Agency through fraud, misrepresentation or a threat to withdraw or alter the terms of this Agreement, and that should he/she knowingly and voluntarily choose to shorten the twenty one (21) day period, the mandatory seven (7) day period will then commence to run on the day he/she signs this Agreement.

The parties shall each bear their own costs, fees and expenses, including attorney fees, if any. Any cancellation fee incurred from the arbitrator shall be split equally between the Agency and the Union.

The parties agree that this settlement agreement constitutes the full and complete settlement and satisfaction of the Suspension Arbitration, and also a global settlement of any and all other grievances, complaints, appeals and claims which the Grievant has or may have against the Agency, its employees, or agents arising out of and/or related to Grievant’s employment with the Agency, as of the execution of this Settlement Agreement. Accordingly, Grievant agrees not to appeal or otherwise challenge the voluntary nature of this agreement, or to bring any other employment-related claim arising before the execution of this Settlement Agreement against the Agency in any forum, including, but not limited to: the negotiated grievance/arbitration process, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, and/or any federal or state court.

This agreement is for the parties’ mutual benefit and will have no precedential value in any forum, including, but not limited to the negotiated grievance/arbitration process, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, and federal or state court.

This agreement does not constitute an admission of any wrongdoing or violation of any law, rule, regulation, or contract by the Agency, its agents or employees.

This agreement represents the parties’ entire agreement. No other provisions or amendments thereto shall have any force or effect unless set forth in a writing signed and dated by both parties.

The Grievant agrees that [he/she] had an adequate opportunity to review this agreement and to discuss the same with any persons of [his/her] choosing before signing the same. Furthermore, all parties agree that they read, understand, and voluntarily agree to the terms of this agreement.