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Part 6. Human Resources Management

Chapter 752. Disciplinary Suspensions and Adverse Actions

Section 1. Disciplinary Suspensions of 14 Days or Less

6.752.1  Disciplinary Suspensions of 14 Days or Less

6.752.1.1  (07-01-2002)
Overview

  1. This section describes procedures used by the Internal Revenue Service (IRS) in processing disciplinary actions of fourteen (14) days or less. Under regulations prescribed by the Office of Personnel Management (OPM), an employee may be suspended for fourteen (14) days or less for such cause as will promote the efficiency of the Service, (including discourteous conduct to the public, confirmed by an immediate supervisor’s report of four such instances within any one-year period, or any other pattern of discourteous conduct).

  2. Applicable collective bargaining agreements should be consulted when proposing and effecting disciplinary suspensions. To the extent provisions of IRM 6.752.1 are in specific conflict with applicable agreements, the provisions of the agreements will govern.

6.752.1.2  (07-01-2002)
Authorities and References

  1. 5 CFR 752, Subpart A, B

  2. 5 U.S.C. §7501-7504

  3. IRM 6.751

  4. 29 CFR Part 16I4

  5. 5 U.S.C., Sections 7114(a)(5) and 7121(b)(3)

6.752.1.3  (07-01-2002)
Definitions

  1. Day means a calendar day.

  2. Employee means 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 positions under other than a temporary appointment limited to one (1) year or less.

  3. Suspension means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.

6.752.1.4  (07-01-2002)
General Requirements

  1. A disciplinary suspension is used to correct serious or repeated misconduct, or violations of local, state or Federal law, 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 conduct, or when the gravity of the offense warrants stringent corrective action.

  2. In assessing both the propriety of a suspension and its length, consideration should be given to the organizational hardships created by any suspension action. By definition, a suspension penalizes an employee for specified misconduct. However, a suspension also affects the workload responsibilities and productivity of the suspended employee’s work unit.

  3. Under applicable regulations, the time frame between a proposal to suspend and the decision and effective date of a suspension is not prescribed. The single requirement is that there must be a reasonable period of time for the employee to submit a written and/or oral reply to the charges contained in the advance notice. This advance notice period must not be less than twenty-four (24) hours. Ordinarily the employee has a fifteen (15) calendar day period in which to answer orally and/or in writing to the proposal.

  4. In a disciplinary suspension, there must be some reasonably foreseeable, specific connection between an employee’s conduct and the efficiency of the Service. In off-duty misconduct cases, this nexus must be indicated in the proposal letter. (See 6.752.2.6(1)).

  5. If a disciplinary suspension is to be used as part of a progressive effort to correct an employee’s recurring misconduct, previous disciplinary actions should be cited as a basis for the proposed suspension. Other actions within two (2) years (counseling, letters of caution or warning) may be cited as well. However, when citing the latter actions, the particulars of the offense should be set in the same way that current instances of wrongdoing are set forth (i.e., as specifications), so that the employee will have a chance to answer these reasons for the proposed action. The citation of a past disciplinary record should not include any reprimands or admonishments, or the reasons therefore, which are more than two (2) years old. The proposing official may site suspensions as past discipline, even if more than two (2) years old, if they are relevant. If previous discipline has been cited in the proposal letter, it must be cited in the final decision.

  6. Discourteous conduct to the taxpaying public confirmed by an immediate supervisor’s report of four (4) such instances within any one-year period, or any other pattern of discourteous conduct, may result in an employee’s suspension (5 U.S.C. § 7502(a)). This does not preclude corrective action including suspension for fewer than four (4) instances of discourteous service if warranted.

6.752.1.5  (07-01-2002)
Procedures

  1. The regulatory and statutory requirements applicable to disciplinary suspensions under Title 5 U.S.C. 7503 and Subpart B of 5 CFR 752 entitle an employee to:

    1. An advance written notice stating the specific reasons for the proposed action;

    2. A reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

    3. Representation by an attorney or other representative;

    4. Retention in duty status during the notice period;

    5. Consideration of replies, if any; and

    6. A written notice of final decision containing the specific reasons for the action, at the earliest practicable date.

6.752.1.6  (07-01-2002)
Procedures: Written Proposal

  1. An employee against whom a suspension action is proposed must be given an advance written notice (Exhibit 6.752.1-1). The notice shall include:

    1. A statement that the notice is being issued in accordance with 5 CFR 752;

    2. The number of calendar days for the proposed suspension, (i.e., fourteen (14) days or less), and a statement that the action may be taken at any time after fifteen (15) calendar days from the date the notice is received;

    3. The specific reason(s) relied upon to support the disciplinary suspension. The reasons and specifications should be stated clearly, with sufficient detail to identify who, what, where, and when in such a way that a person will be able to respond to the charges. Additionally, the advance notice should state that the action is proposed for such cause as will promote the efficiency of the Service. In off-duty misconduct cases, the connection between the employee’s conduct and the efficiency of the Service (the nexus) must be indicated.

    4. A statement informing the employee of his/her right to be represented by an attorney or other representative, and the right of his/her representative to review the material, which is relied on to support the reason(s) for action set forth in the notice;

    5. A statement concerning the employee’s right to have or review the material relied on, and from whom it should be requested or where it may be reviewed. The employee, upon request, will be furnished a copy of all or any part of the material. See Exhibit 6.752.1-2 for suggested language for an employee to request the material relied on. If there is tax return information in the material, disclosure restrictions should be included. (Information will be contained in IRM 6.751 which will be published at a future date.) See Exhibit 6.752.1-2 for a sample request from an employee’s representative to obtain tax information relied on.

    6. A statement that the employee has the right to answer orally and/or in writing and to submit affidavits in support of such reply, provided that any request for an oral reply is received within seven (7) calendar days from receipt of the letter of proposed action, and provided the written and/or oral reply is received no later than fifteen (15) calendar days from receipt of the notice of proposed suspension;

    7. The identity of the person to whom any written and/or oral reply should be made (the official who issued the proposal), the address to which the written reply should be sent;

    8. Provided the employee is on official duty status, a statement indicating the amount of official time which will be allowed to review the supporting material, to secure affidavits, and to prepare the reply to the notice of proposed disciplinary suspension, and the official (and the official’s address) from whom the time should be requested;

    9. A statement that no final decision has been or will be made until the reply period is over, that if a reply is received it will be considered before a decision is made, and that if no reply is made, at the end of the reply period a decision will be made based on the evidence of the record;

    10. A statement that as soon as possible after the reply is received or at the expiration of the reply period (if no reply is made) the employee will be given a written decision;

    11. If considered desirable, an identification of whom the employee may contact (name or office) for clarification of procedures or review of regulations relating to disciplinary suspensions; and

    12. In instances where the employee requests a reasonable extension of time within this period to submit an oral or written reply, the extension may be granted upon a determination of the validity of the reasons that prevent or make unreasonable an oral or written reply in a lesser period.

6.752.1.7  (07-01-2002)
Employee Entitlements Before a Decision

  1. In addition to the right to have an advance written notice of proposed action, the employee is entitled to reasonable time [seven (7) calendar days] to answer orally and/or in writing, and to furnish affidavits and other documentary evidence in support of the answer. lf the employee elects to answer orally, the proposing official may hear the answer or may designate another person to hear and summarize the answer. Employees are entitled to official time to prepare and present oral and written responses, usually two to three (2-3) hours.

  2. The employee is entitled to be represented by an attorney or other representative. The official who has authority to render the decision on the proposed action may disallow as an employee’s representative an individual whose activities as a representative would cause a conflict of interest or position, or an employee whose release from his/her official position would give rise to unreasonable costs, or whose priority work assignments preclude his/her release. In such cases, the official will notify the employee in writing of the reason(s) for disallowing the individual to serve as the employee’s representative.

6.752.1.8  (07-01-2002)
Written Decision

  1. A written notice of decision will be issued and delivered to the employee at the earliest practicable date after the employee has made a reply or after the date for making a reply has passed.

  2. The letter must be delivered to the employee prior to effective date of suspension. The effective date of all suspensions is 12:01 a.m. on the date specified. The final decision notice (Exhibit 6.752.1-3) should include:

    1. Reference to any and all replies made by the employee and a statement that these replies were considered. If no reply was made, the statement should reflect that fact;

    2. A statement specifying the determination reached on each reason and specification in the notice of proposed disciplinary suspension. The statement should enumerate each reason and specification with a clear indication of whether it is sustained or not sustained. If an employee’s past disciplinary record or other aggravating circumstance was cited in the advance notice as a consideration in proposing the action, it must also be referenced in the decision notice. In addition, if a bargaining unit employee raised an issue of discrimination, the legitimate management reasons for the action must be stated;

    3. A statement that addresses any factual disputes raised by the employee’s reply or replies and which states the resolution of each dispute;

    4. A statement that the sustained reasons and specifications, as well as any other factor which was considered (as set forth in the proposal), warrant the action decided upon to promote the efficiency of the service;

    5. Length of suspension being effected. While there is no requirement, it is recommended that information be included demonstrating that the deciding official has considered all relevant factors and has reached a judgment that the penalty is appropriate (See Exhibit 6.752.1-3.);

    6. The effective date of the suspension;

    7. Appeal rights under appropriate negotiated or agency grievance system;

    8. A statement of discrimination appeal rights under Part 1614 of the Equal Employment Opportunity Commission Regulations. (Part 1614 of the Equal Employment Opportunity Commission regulations is in 29 CFR.);

    9. If considered desirable, the name, title and location of the Internal Revenue Service official (usually the servicing Labor Relations officer) from whom further information concerning the appeal procedures can be obtained; and

    10. A statement that the Standard Form 50 is attached. If waiting for SF-50 would unduly delay delivery of decision, statement can be deleted. See IRM 6.751 (Information will be contained in IRM 6.751 which will be published at a future date.) when a reason for action involves the employee’s own tax matters.

6.752.1.9  (07-01-2002)
Employee Entitlements After a Decision

  1. The employee may file a grievance through the administrative grievance system, or, if the suspension falls within the coverage of an applicable negotiated grievance procedure, the employee in an exclusive bargaining unit may file a grievance only under that procedure.

  2. Sections 7114(a)(5) and 7121(b)(2) of Title 5 U.S.C. and the terms of any collective bargaining agreement govern representation for employees in an exclusive bargaining unit who grieve a suspension through the negotiated grievance procedure.

6.752.1.10  (07-01-2002)
Records and Reports

  1. All supporting material for proposing the disciplinary suspension should be gathered and placed in a file before preparation and issuance of a notice of a disciplinary suspension. This material should consist of documents used by the proposing official to support the reasons (as well as any aggravating circumstances or nexus that are cited) including copies of pertinent portions of TIGTA reports. (Information will be contained in IRM 6.751 which will be published at a future date.) Add to this file:

    1. Copy of notice of proposed disciplinary suspension;

    2. Any written reply and affidavits, evidence or material attached thereto;

    3. Transcript or summary of oral reply (if any) and exhibits thereto;

    4. Copy of final decision;

    5. Copies of all correspondence to and from the employee and/or representative; and

    6. Proof of delivery of the notice and decision.

  2. Copies of the file are made available upon request to the employee and/or representative for review. Caution should be used in releasing copies of tax information. (Information will be contained in IRM 6.751, which will be published at a future date.)

Exhibit 6.752.1-1  (07-01-2002)
Suggested Notice of Proposed Suspension of 14 Days or Less

Dear ______,
This is a notice of proposed disciplinary suspension issued in accordance with Part 752 of the Code of Federal Regulations (CFR). In order to promote the efficiency of the service, I propose to suspend you from duty and pay for a period of __ calendar days, or otherwise discipline you, at any time after fifteen (15) calendar days from the date you receive this notice.
This proposed suspension is based on the following reason(s):
Reason I: [State a specific identifiable offense that refers to personal conduct on the part of the employee, i.e., what the employee actually did that was wrong. For example: "You failed to obey the instructions of your supervisor." Where appropriate, cite a specific Rule of Conduct or other instruction, e.g., "… in violation of.…"
  Specification 1: Specifically describe the offense, with reference to times and dates, locations, persons directly involved (not witnesses), and specific acts and actions. It should be evident from reading the specification why the reason has been cited. The specification is not the evidence, although elements of the evidence may make up the specification. Some examples of the way specifications may be written can be found in IRM 6.752.1(1)g
Specification 2: State as many specifications as are necessary. Normally, each individual specification should detail a separate instance of misconduct.]
Reason 2: [Use as many reasons as there are clearly distinct offenses.]
[In cases of off-duty misconduct, the nexus must be stated. This is a description of why and how there is a connection between the specific off-duty misconduct and the efficiency of the service. As applicable, the connection might be established in terms of publicity or notoriety, the effect on the image of the IRS or ability to accomplish the mission of the IRS, the effect on the Service’s ability to rely on the integrity, honesty or good judgment of the employee (especially for responsible jobs), the effect on co-workers (safety concerns, morale, job performance, etc.), and direct applicability to the job (an obvious nexus, such as with tax cases). Begin with a phrase such as the following:] "Such conduct seriously impairs the efficiency of the IRS…"
[If prior discipline or other aggravating circumstances are present, state:] "I am also taking into account the fact that…"
You have a right to the material relied on to support the reasons in this notice and may request it from _________.
[If tax return information is used in specifications or in the material relied on, state:] "Because you are restricted from making disclosure of tax information without proper approval, the tax cases covered in this letter are identified in an attachment to this letter. Tax information in this letter and the attachment, as well as the material relied upon to support the action, may be used solely in connection with this action and related proceedings. A written request must be made if you wish to disclose the tax information to any person other than a Treasury employee in connection with that employee’s official duties with respect to this matter. You are subject to the provisions of Internal Revenue Code 7213 and 7431 in the event of an unlawful disclosure of tax information. If you designate a representative or representatives and you wish to disclose the tax information to that person or persons, each representative must sign and deliver the letter, which is attached. A letter is also attached which you may use to request a copy of the material relied on in this matter."
[See Exhibit 6.752.1-2 for the form letters.]
You have the right to answer both personally and in writing and to furnish affidavits and evidence in support of your answer. I must receive your written and/or oral reply within fifteen (15) calendar days from your receipt of this letter. You also have the right to be represented by an attorney or other representative. Any written reply or request for an oral reply should be addressed to _____. Should you desire an oral reply, you must request it within seven (7) calendar days from your receipt of this letter. If otherwise in an active duty status, you have a right to a reasonable amount of official time to review the material relied on in this matter, to secure affidavits, and to prepare an answer. For these purposes, you will be allowed ___hours of official time. In addition, you will be allowed official time to make an oral reply if you choose to do so. You should arrange with your supervisor for any use of official time. You may contact for further explanation if you do not fully understand the reasons for this proposed action.
A final decision will not be made in this matter until your reply or replies have been received and considered; or, if no reply is received, until after the reply period has passed. Any replies submitted by you will be given full consideration. You will be notified in writing of the final decision. You will be retained in a work status during the advance notice period [add, if appropriate:] "unless workload requirements necessitate placing you in a non-duty status." [For those in non-work status, state:] "You will remain in a non-duty status during the advance notice period unless workload requirements necessitate recalling you to duty."
Sincerely,

Note:

For bargaining unit employees, a copy of this notice will be provided simultaneously to NTEU.

Exhibit 6.752.1-2  (07-01-2002)
Suggested Language for Employee Request for Material Relied On and for Representative Request for Access to Tax Information

[Request by Employee for Material Relied Upon]
Please make available to me a copy of the material relied on to support the letter of___. I understand that tax returns and return information included in the material may not be disclosed to my representative or to anyone else (other than a Treasury Department employee in connection with that employee’s official duties with respect to this matter) without proper approval.
[Request by Representative for Access to Tax Information]
This is a request for access to coded tax information contained in the letter dated to ___, and a request for access to the tax information contained in tax cases or other documents supporting the letter. The information is being disclosed to me for use in my representation of in connection with this action and any proceeding which may arise from it.
I understand that Internal Revenue Code 7431 permits a taxpayer to bring a civil action against a person who knowingly or negligently discloses tax information in violation of Internal Revenue Code 6103.
I further understand that the tax information may not be used in any public proceeding or disclosed to any person, other than a Treasury Department employee in connection with that employee’s official duties with respect to this matter, unless the particular use or proposed disclosure is approved by the Service upon my separate written request. Upon such a request, the Service will ordinarily provide authorization to disclose relevant sanitized tax information, as appropriate. This separate written request is not necessary if I disclose to a third party or at a public proceeding only the information that has already been disclosed by the Service to that third party, provided that the extent of such disclosure is limited to the form and extent of the Service’s disclosure. For example, the evidence file submitted by the Service to the Merit Systems Protection Board in response to an employee’s appeal may be used at the hearing without prior request by the employee or representative.

Exhibit 6.752.1-3  (07-01-2002)
Suggested Decision Notice in Suspension of 14 Days or Less

In a letter dated___, it was proposed to suspend you from duty and pay for a period of_ calendar days based on the reason(s) and specification(s) therein. I have carefully considered [include, as applicable, replies and their dates.]
[If the bargaining unit employee raised an issue of discrimination at the oral/written reply stage, the deciding official must state a legitimate management reason for the action, such as:] In your reply, you allege that this action is being taken against you because of your____. Having considered your replies, [insert if appropriate: "and the evidence you have submitted" ] I am persuaded that there are no discriminatory motives for the action. A nondiscriminatory reason for the action is that your conduct does not meet the standards required by the Service.
[If the employee has raised any factual disputes, the deciding official must state why each was rejected. Factual disputes arise when the employee presents evidence or assertions of fact which appear to conflict with facts presented by management. They do not include arguments, such as whether or not there is a nexus or whether or not the penalty is appropriate. It is sufficient to state which facts are found more credible.]
My decision regarding the reasons stated in the letter of_____ is as follows:
REASON 1 Sustained
Specification 1 Sustained
Specification 2 Not Sustained
REASON 2 Sustained
All Specifications Sustained

Note:

If all reasons and specifications are sustained, a statement to that effect will suffice.]
[It is recommended that the deciding official demonstrate that relevant factors have been considered in arriving at the decision. This can be done by means of a statement to that effect, such as:] in determining what penalty is adequate and appropriate in this case, I have considered all relevant factors, including those listed in 6.752.1.8 and those raised by you and your representative in your replies. [The deciding official may wish to discuss specific factors brought forth by the employee and representative, indicating that they were taken into consideration but that an action is necessary because, for example:] The Service must be able to rely on the honesty of its employees and your misconduct is a very serious violation which warrants severe disciplinary action.
[In all cases where aggravating circumstances, such as prior discipline, were mentioned in the proposal letter, they should also be reference here, for example:] I have also taken into consideration the fact that you have received a __ on __ for __. [Aggravating factors not mentioned in the proposal letter should not be considered or discussed. Any nexus statement should also be referenced, for example:] I have also determined that your misconduct has impaired the efficiency of the service.
It is my decision that in order to promote the efficiency of the Service, you be suspended from duty or pay for a period of _ calendar days commencing on ______. You will return to duty at _a.m., on ___. If you engage in any future misconduct, consideration will be given to this action. Future discipline could be severe.
[For bargaining unit members state:] You have the right to appeal this action in accordance with the National Agreement between NTEU and the Internal Revenue Service.
[For non-bargaining unit members state:] You have the right to make this action the subject of an agency grievance in accordance with the provisions of IRM 6.771.1, Grievance Handbook, a copy of which is available in your personnel office. The grievance must be filed within fifteen (15) workdays after the effective date of this action.
An allegation that the action taken against you was based in whole or in part on discrimination because of race, color, religion, sex, age, national origin, or physical or mental handicap, may be taken up with the Service under Part 1614 of the Equal Employment Opportunity Commission regulations, provided that such allegation is brought to the attention of an EEO counselor within forty-five (45) calendar days of the effective date of this action. Information about these appeal rights and procedures may be obtained from your Equal Employment Opportunity Counselor.
[For the bargaining unit employee add:] As an alternative, an allegation of illegal discrimination may be raised in connection with the appeal under the National Agreement between NTEU and the Internal Revenue Service if the specific nature of the discrimination, the facts upon which the allegation is based, and the name(s) of the alleged discriminating official(s) were presented in writing at the oral/written reply stage and if you have not filed an EEO complaint concerning this decision. Should you raise an issue of illegal discrimination and should you not prevail at arbitration, you have the right to appeal the arbitrators decision to the Equal Employment Opportunity Commission or to an appropriate United States District Court.
A Standard Form 50 effecting your suspension is enclosed [or:] …will be forwarded to you when available.
Sincerely,

Note:

For bargaining unit employees: A copy of this notice will be provided simultaneously to NTEU.

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