6.752.1  Disciplinary Suspensions of 14 Calendar Days or Less

6.752.1.1  (11-28-2008)
Overview/Coverage

  1. 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.

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

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

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

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

  6. 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:

    • 6.751.1.3 Concept of Discipline

    • 6.751.1.4 Prohibition Against Discrimination

    • 6.751.1.5 Employee Representation

    • 6.751.1.6 Progressive Discipline

    • 6.751.1.7 Authority

    • 6.751.1.8 Human Capital Office (HCO) Responsibilities

    • 6.751.1.9 Responsibilities of Embedded Human Resources (HR) Staff

    • 6.751.1.10 Management Responsibilities

    • 6.751.1.11 Levels of Accountability

    • 6.751.1.12 Security of Personally Identifiable Information

6.752.1.2  (11-28-2008)
Definitions

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

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

  3. 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.

  4. Day – a calendar day.

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

  6. 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.

  7. 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.

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

  9. 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.

  10. 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.

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

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

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

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

  15. 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

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

  17. 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.

  18. 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)

6.752.1.3  (11-28-2008)
Cause

  1. 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.

6.752.1.4  (11-28-2008)
General Requirements

  1. 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.

  2. 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.

6.752.1.5  (11-28-2008)
Burden of Proof

  1. 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."

6.752.1.6  (11-28-2008)
Nexus

  1. 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.

  2. 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.

6.752.1.7  (11-28-2008)
Employee Entitlements

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

    1. Advance written notice. The Agency has agreed to provide fifteen (15) calendar days advance written notice to employees. The notice must include the specific reasons for the proposed action;

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

    3. Representation by an attorney or other representative; and

    4. A written notice of the final decision with the specific reasons for the action. This decision should be issued to the employee as soon as practicable, but never be effective any earlier than fifteen (15) calendar days from the date he/she received the proposal letter.

  2. 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.

6.752.1.8  (11-28-2008)
Alternative Discipline

  1. 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.

  2. 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.

  3. 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

  4. 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)

  5. 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.

  6. 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.

6.752.1.9  (11-28-2008)
Research Tools and Consultations

  1. 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.

  2. 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.

  3. 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.

6.752.1.10  (11-28-2008)
Procedures

  1. 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:

    1. A statement that the notice is issued in accordance with 5 C.F.R. 752;

    2. The number of calendar days for the proposed suspension, for example, five (5) calendar days;

    3. A statement that the action may be taken at any time after fifteen (15) calendar days from the date the proposal letter is received;

    4. The specific reasons relied upon to support the action. The reasons and specifications should be stated clearly and with sufficient detail to identify who, what, when, and where, so that the employee will be able to respond to the proposed action;

    5. A statement that the action is proposed for such cause as will promote the efficiency of the Service. If the misconduct occurred off-duty, a nexus (connection between the misconduct and the efficiency of the Service) must be included;

    6. Any factors which may enhance the penalty, such as prior discipline, must be included so that the employee has a fair opportunity to respond to those factors before a decision is made;

    7. A statement advising the employee of his/her right to be represented by an attorney or other representative and that the employee’s chosen representative has the right to review the material relied upon to propose the action;

    8. A statement that the employee has a right to review the material relied upon to propose the action and from whom it should be requested (See Exhibit 6.752.1-1 for a sample request letter);

    9. A statement that the employee has a right to request an oral reply and/or submit a written reply and to submit affidavits in support of such replies. If an oral reply is requested, it must be requested within seven (7) calendar days from receipt of the proposed action and any written reply must be received within fifteen (15) calendar days from receipt of the proposed action (NOTE: employees may request additional time for an oral reply or to submit a written reply. Reasonable extensions should be granted provided the reasons for the extension are valid and that the request would not unduly delay the process);

    10. The identity of the person to whom any written and/or oral reply request should be submitted as well as the address where such request should be provided;

    11. If the employee is otherwise in an active duty status, the advance notice should also advise the employee of the amount of administrative time he/she may be given to request and review the material relied upon, prepare a reply to the proposed action, and from whom the employee should request such time;

    12. A statement that a final decision will not be issued until the oral reply or time for a written reply has passed and that any replies received will be given consideration;

    13. A statement that if no reply is requested or received, the decision will be made based on the evidence of record;

    14. A statement that a written decision will be issued as soon as possible after the time period for a reply is passed;

    15. As an option, the advance notice may identify a person who the employee may contact if he/she has questions regarding the advance notice.

6.752.1.11  (11-28-2008)
Guidelines for Identifying and Using Tax Information

  1. 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.

  2. 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" .

  3. 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."

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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."

6.752.1.12  (11-28-2008)
Framing Charges and Evidence

  1. 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).

  2. 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:

    • The listener’s reactions;

    • The listener’s apprehension of harm;

    • The speaker’s intent;

    • Any conditional nature of the statements; and

    • The attendant circumstances

  3. 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:

    • "Failure to provide complete information" or"Failure to provide accurate information" instead of falsification;

    • "Failure to follow a managerial directive" instead of insubordination;

    • "Taking an item that did not belong [to the employee] " instead of theft;

    • "Inappropriate conduct" or "Disruptive conduct" instead of threat; and

    • "Inappropriate conduct" or "Conduct unbecoming an IRS Employee" instead of sexual harassment.

  4. 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.

  5. 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.

6.752.1.13  (11-28-2008)
Delivery of Advance Notice

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

    1. To accomplish timely delivery, personal delivery (securing an acknowledgement of receipt from the employee) is the preferred method. In those instances when the employee refuses to sign, the individual delivering the notice should notate a copy of advance notice with the fact that the employee declined to sign and that he/she delivered the original advance notice to the employee. The individual delivering the notice should date and sign that copy.

    2. If there are other witnesses to the attempt to deliver the advance notice, those witnesses should also sign/date the copy of the advance notice.

    3. If the employee is absent due to leave or travel and such absence is temporary, delivery should be made upon the employee’s return to work via personal delivery as described in 6.752.1.13(1)(a) above.

    4. However, if personal delivery or delivery by messenger is not possible, the advance notice should be mailed to the employee’s address of record. The advance notice should be mailed via regularand certified mail or overnight mail to ensure timely constructive delivery can be established.

6.752.1.14  (11-28-2008)
Employee Status During Advance Notice Period

  1. 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.

6.752.1.15  (11-28-2008)
Denial of Representative

  1. 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

    1. The proposing official will issue a notice, no later than five (5) calendar days after receipt of the designation of representative, to the employee. The notice will advise the employee of the reasons why the representative was disallowed, including any specific reasons why the choice of representative would cause a conflict of interest or position; that the employee has the right to choose another representative; and that the employee has the right to appeal the disallowance directly to the Director, Workforce Relations Division (WRD). The supporting LR/ER office must send a copy of the disallowance letter along with a copy of the employee’s letter designating the representative to the Director, Workforce Relations Division, 1111 Constitution Avenue, Washington, DC 20224, within five (5) calendar days of the issuance of the disallowance. If the representative was disallowed due to a conflict of interest or position, a copy of the position description for the position(s) in question must be included as well. See Exhibit 6.752.1-3

    2. If the employee wishes to appeal the disallowance, he/she must submit an appeal to the Director, WRD within five (5) calendar days of receipt of the disallowance notice.

    3. A final appeal decision on the disallowance will be issued by the Director, WRD within ten (10) calendar days of receipt of a timely appeal. See Exhibit 6.752.1-4

  2. 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.

6.752.1.16  (11-28-2008)
Rights of Representatives

  1. 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:

    1. Will be allowed a reasonable amount of administrative time to prepare for and present reply(ies) on behalf of the employee. This would include time to review documents that may not be available during non-duty hours or to interview other IRS employees on relevant matters. The NA includes provisions that cover the granting of official and/or bank time for union officials who are representing employees in an adverse action proceeding.

    2. Union officials designated as representatives are entitled to travel and/or per diem in lieu of subsistence if it is necessary to conduct an oral reply away from the employee’s official duty station. The union official's travel and/or per diem shall not exceed the amount that would be authorized for the employee facing the action. The NA includes provisions that cover the granting of official and/or bank time for union officials who are representing employees in an adverse action proceeding.

6.752.1.17  (11-28-2008)
Right to Reply

  1. 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.

    1. Written Reply - There is no requirement that the employee provide a written reply or that any written reply submitted be in an affidavit form or under oath; however, the employee may elect to submit the reply in that manner. The employee may elect to include affidavits or other evidence in support of his/her written reply. Any written documents (including attachments provided by the employee) are made part of the file and must be reviewed and considered prior to making a decision.

    2. Oral Reply – As with the written reply, there is no requirement that the employee request an oral reply. Accordingly, he/she may elect to attend or not attend an oral reply. 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.

  2. 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.

6.752.1.18  (11-28-2008)
Oral Reply Procedures

  1. 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.

  2. The procedures for an oral reply are as follows:

    1. The employee or his/her duly authorized representative may request the reply;

    2. The request may be submitted in writing or verbally. If requested verbally, the file should be noted with the date the request was made and who made the request;

    3. To avoid any procedural errors, if the request is unclear, the proposing official and/or supporting LR/ER specialist should contact the employee or his/her representative to clarify whether or not the employee is invoking his/her right to an oral reply;

    4. It should be conducted at the employee’s post of duty to minimize expenses of the employee and his/her representative;

    5. If the employee elects an oral reply and elects to attend, he/she is entitled to travel and/or per diem as noted above as well as a reasonable amount of administrative time. However, if the employee is in a non-duty or a non-pay status at the time of the oral reply (e.g., the employee is a seasonal employee who has been placed in non-duty and/or non-pay status due to lack of work or at his/her own request), he/she is not entitled to administrative time or any pay for attendance at the oral reply; and

    6. After the oral reply has been conducted, the summary of the reply, or verbatim transcript, (if a verbatim transcript is made) will be transmitted to the employee or his/her designated representative.

6.752.1.19  (11-28-2008)
Role of the Oral Reply Officer

  1. 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.

  2. 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.

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

    1. Consult with his/her supporting LR/ER specialist;

    2. Review the file, particularly the reason(s) noted in the advance notice as well as the supporting evidence;

    3. Review any relevant documentation referenced in the advance notice (e.g., rules of conduct, technical manuals, etc);

    4. If the employee is a member of the bargaining unit (BU), review the appropriate provisions of the NA; and,

    5. Review Exhibit 6.752.1-5, Guide for Oral Reply Proceedings, for the format of the oral reply.

  4. 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.

  5. 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.

6.752.1.20  (11-28-2008)
Douglas Factors

  1. 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.

6.752.1.21  (11-28-2008)
Content of the Decision Notice

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

    1. A reference to the notice of proposed action and the date it was issued;

    2. A statement identifying by date the employee’s reply(ies) and certifying these reply(ies) were considered. The decision should also indicate if no reply(ies) were received;

    3. If a claim of discrimination is raised by the employee or his/her representative, a statement of the legitimate management reason for the action;

    4. If any factual disputes are identified by the employee and/or his/her representative, they must be included along with the resolution of each dispute;

    5. A statement specifying the determination reached on each of the reason(s) and specification(s) included in the advance notice of proposed adverse action. It is preferable that the statement clearly indicate whether or not the reason(s) and/or specification(s) were sustained. No explanation for sustaining/not sustaining is necessary;

    6. Any factors, such as a past disciplinary record, aggravating or mitigating circumstances, or nexus (or changes/amendments to the nexus), included in the advance notice of proposed action must be included in the decision;

    7. A statement that any medical condition raised by the employee or his/her representative was considered;

    8. A statement that the sustained reasons and specifications, as well as any other factor (typically the Douglas Factors) which were considered as set forth in the advance notice of proposed action warrant the action decided upon to promote the efficiency of the Service;

    9. A statement of the action to be effected. While not a requirement, it is advisable a statement that the deciding official reached a judgment that the penalty was appropriate (e.g., the deciding official considered all relevant factors including those mitigating factors raised by his/her representative during the oral reply). It is imperative that no discussion or consideration of factors other than those included in the original advance notice of proposed action or raised by the employee or his/her representative be considered when making a decision;

    10. The effective date of the action (NOTE: consult the NA to ensure the decision is given to the employee within the time periods contained in the agreement);

    11. A statement regarding applicable appeal rights; and

    12. A statement that the personnel action form will be provided at a later time (presuming it cannot be attached at the time the decision is issued).

6.752.1.22  (11-28-2008)
Rights to Appeal

  1. 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.

  2. 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.)

  3. 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.

6.752.1.23  (11-28-2008)
Settlements

  1. 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.

  2. 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.

  3. 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.

  4. 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.

6.752.1.24  (11-28-2008)
Records/Reports

  1. 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:

    1. Copy of the notice of proposed action.

    2. Any written reply and/or affidavits or documents provided by the employee or his/her representative.

    3. Summary or transcript of the oral reply and any exhibits.

    4. Copy of the final decision; and

    5. Proof of delivery of the notice and decision.

  2. 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.

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

Exhibit 6.752.1-1  (11-28-2008)
Release of Material Relied Upon (if the letter contains tax information)

Request by Employee for Material Relied Upon

Please make available to me a copy of the material relied upon to support the letter of (date) . 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 (date) issued to (employee name) , 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 (employee name) 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 been 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 6.752.1-2  (11-28-2008)
Proposed Disciplinary Suspension

________________________
_____________________
_____________________
CERTIFIED MAIL (Also Regular Mail)
RETURN RECEIPT REQUESTED
Dear M__, ______________________
This is a notice of proposed disciplinary suspension issued in accordance with Title 5, Part 752 of the Code of Federal Regulations. In order to promote the efficiency of the Service, it is proposed to suspend you from duty and pay for a period of _____ ( ) calendar day(s), 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 1:
Specification 1:
(Nexus statement for off-duty misconduct, if needed)
(Prior discipline and/or aggravating factors)
[You have a right to the material relied on to support the reason(s) in this notice and may request it from __________________, Human Resources Specialist, at (XXX) XXX-XXXX.
(If tax return information is used in specifications or in the material relied on, include the following paragraph):
Because you are restricted from making disclosure of tax information without proper approval, the tax cases covered in this letter are identified in an enclosure to this letter. Tax information in this letter and the enclosure, as well as the material relied on 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 enclosed. A letter is also enclosed which you may use to request a copy of the material relied on in this matter.
You have the right to answer, both personally and in writing, and to furnish affidavits and evidence in support of your answer. Your reply must be received by me 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 me at (list mailing address for the proposing official). 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 administrative 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 a **reasonable amount of administrative time. In addition, you will be allowed administrative time to make an oral reply if you choose to do so. You should arrange with your supervisor for any use of administrative time. Furthermore, if you need additional administrative time (other than what was initially granted to you) to prepare a response, you must request and obtain approval for the additional time. A disallowance of additional time does not preclude you from preparing a response on your own time. [** The amount of administrative time allowed is determined by management.]
You may contact ____________, Human Resources Specialist, at (XXX) XXX-XXXX 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. (For a non-seasonal permanent employee): You will be retained in a work status during the advance notice period. (For a seasonal employee in work status): You will be retained in a work status during the advance notice period, unless workload requirements necessitate placing you in a non-duty status during the advance notice period. (For a seasonal employee in non-work status): You will remain in a non-duty status during the advance notice period, unless workload requirements necessitate recalling you to duty.
Sincerely,
Title of Appropriate Level Supervisor
(See delegation orders –
Operations Level or Territory Managers)

Exhibit 6.752.1-3  (11-28-2008)
Denial of Representative (by proposing official)

MEMORANDUM TO: EMPLOYEE NAME
EMPLOYEE TITLE
FROM: Name of Proposing Official
Title of Proposing Official
SUBJECT: Denial of Representative
On (date) you advised me that you wished (name of individual) to represent you in the connection with the proposal to (suspend you from duty and pay, remove, reduce you in grade, etc. from the proposal letter).
[The specific reasons why the employee’s choice of representative is being denied must be stated. For example: You are a manager of Unit 1 in Department (or area) X. The employee you have chosen as your representative is an employee of Department (or area) X. As a manager in Unit 1, Department (or area) X, you may be in the supervisory chain of the employee. Thus, your choice of representatives could cause a real or apparent conflict of interest. ]
If you disagree with my decision, you must file an appeal, within five (5) calendar days of receipt of this memorandum to the Director, Workforce Relations Division at the following address:
1111 Constitution Avenue
Washington, DC. 20224

Exhibit 6.752.1-4  (11-28-2008)
Denial of Representative (by Director, WRD)

MEMORANDUM TO: EMPLOYEE NAME EMPLOYEE TITLE
FROM: Name
Director, Workforce Relations Division
SUBJECT: Appeal of Denial of Representative
On (date) you appealed management's decision to deny (name of chosen representative) as your representative in connection with the proposed adverse action.
I considered the information included in your appeal, your job, and the nature of your chosen representative’s job. I agree with management that allowing (Name of chosen representative) to represent you in this matter, would constitute a real or apparent conflict of interest as that individual is a bargaining unit employee in your department. Therefore, I am denying your choice of representative
If you wish to be represented in connection with the proposed adverse action, you have a right to choose another representative. You should advise the proposing official of the identity of that representative as soon as possible. If you do not identify another representative, management will consider that you do not wish to be represented and will proceed with the action.

Exhibit 6.752.1-5  (11-28-2008)
Guide for Oral Reply Proceedings

The oral reply officer should open the proceeding by providing the following information on the record:

• The name and job title of the Oral Reply Officer

• A statement that he/she will be the Oral Reply Officer for the proceedings

• Explain the purpose of the oral reply [to allow the employee and/or his/her representative the opportunity to present information related to the proposed action]

• A statement recognizing that the oral reply is not a "hearing" and it will not be allowed to develop into an adversarial type of hearing

• A statement recognizing that, in the proceeding, the Service does not argue or present its case

• A statement that witnesses are not permitted at the proceedings since this is not a "hearing," however, the employee and/or his/her representative may furnish affidavits for consideration

• A statement that a copy of the oral reply procedures was furnished to the employee/representative on (identify the date they were provided)

• Confirm that the employee and/or his/her representative have had a chance to review the procedures

• Confirm whether or not the employee or his/her representative has any questions regarding the procedures

• Confirmation of who will be the primary spokesperson for the proceedings

At the conclusion of the employee’s reply, the Oral Reply Officer should provide the following statements for the record:

• The summary of the proceedings [or a copy of the oral reply transcript if a court reporter is used] will be furnished to the employee (or designated representative) after receipt;

• I [or name of proposing/deciding official if another manager is designated to serve as the Oral Reply Officer] will review the entire file in this matter, including the summary [or oral reply transcript if a court reporter is used], before a decision is made.

• I [or the name of the proposing/deciding official if another manager is designated to serve as the oral reply officer] will issue a written decision once the review is completed.

• Confirm whether or not the employee and/or his/her representative feel they have had a full/fair opportunity to present the reply.

The Oral Reply Officer should then close the record.

Exhibit 6.752.1-6  (11-28-2008)
Douglas Factors

NOTE: Not all of the factors below will be pertinent in every case. Some may weigh in the employee's favor while others may not or may even constitute aggravating circumstances. Selection of an appropriate penalty must involve a responsible balancing of the relevant factors.

1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. (What is the impact on the agency? Is it an integrity issue or just poor judgment?)

2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

3. The employee's past disciplinary record.

4. The employee’s work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisor’s confidence in the employee’s ability to perform assigned duties.

6. Consistency of the penalty with those imposed on other employees for the same or similar offenses.

7. The notoriety of the offense or its impact upon the reputation of the agency.

8. The clarity with which the employee was on notice of any rules violated in committing the offense, or had been warned about the conduct in question.

9. Potential for the employee’s rehabilitation.

10. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.

11. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Exhibit 6.752.1-7  (11-28-2008)
Decision Disciplinary Suspension Letter

_______________________ _______________________
_____________________
 
[If mailed, include instruction: CERTIFIED MAIL (Also Regular Mail) RETURN RECEIPT REQUESTED]
Dear M_. ___________:  
In a letter dated ___ (date) ___, 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 your (written and/or oral reply) of _ (date) __. [If no reply was submitted or requested, include the following statement: "You did not submit a written reply nor did you request an oral reply." ]
(If the employee raised any factual disputes, the deciding official must identify the factual disputes and state why each was rejected)
(If the 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(ies), you allege that this action is being taken against you because of your ___________________________. Having considered your reply(ies) and (if appropriate): 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.
My decision regarding the reason(s) stated in the letter of (date) is as follows:
Reason I: Sustained  
Specification 1: Sustained  
(NOTE: Any nexus statement in the proposal letter must be included and should not be altered.)
In determining what penalty is adequate and appropriate in this case, I have considered all relevant factors, including the Douglas Factors as listed in the Internal Revenue Guide to Penalty Determinations [if replies were received and considered add: "and those raised by you and your representative in your replies." ]It is my decision that in order to promote the efficiency of the Service, you will be suspended from duty and pay for a period of ___ ( ) calendar days commencing (date) . You will return to duty at __:__ _.m. on (date) [NOTE: if the suspension ends on a non-work day and the employee will return to duty following that non-work add: "which is your next official workday." If you engage in any future misconduct, consideration will be given to this action. Future discipline could be severe.
(For BU employees, include the following paragraph.) You have the right to appeal this action in accordance with the National Agreement between NTEU and Internal Revenue Service (IRS).
(For NBU employees, include the following paragraph.) 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 the Labor Relations 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 (EEO) 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 ___________, Human Resources Specialist, at (XXX) XXX-XXXX, and/or your EEO counselor.
(For BU employees, add the following paragraph.) As an alternative, an allegation of illegal discrimination may be raised in connection with the appeal under the National Agreement between NTEU and the IRS 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 arbitrator's decision to the EEO Commission or to an appropriate United States District Court.
A Standard Form 50 effecting your suspension will be forwarded to you when available.
Sincerely,  
Title of Appropriate Level Supervisor
(See delegation orders –
Operations Level or Territory Managers)
[NOTE: For Bargaining Unit employees: A copy of the notice will be provided simultaneously to NTEU.]

Exhibit 6.752.1-8  (11-28-2008)
Sample Language for Settlement Agreement [[includes language for employees who are over age 40]]

SETTLEMENT AGREEMENT

In full, complete, and binding settlement of the [employee name] suspension arbitration invoked on or about [date] ("Suspension Arbitration" ) by National Treasury Employees Union Chapter xxx ("Union" ) on behalf of [employee name] against the Department of the Treasury, Internal Revenue Service ("Agency" ), and any and all other claims that have been brought or could have been brought by [employee name], ("Grievant" ) including any and all pending grievances that have been filed or could have been filed against the Agency in relation to his/her employment with the Agency as of the effective date of this Settlement Agreement, the parties hereby agree as follows:

  1. 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.

  2. 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

  3. 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:

    1. understands that this waiver is part of this Agreement;

    2. has read and understood this Agreement;

    3. intends to waive any and all rights and claims under the ADEA as to all matters which in any way relate to or arise from the instant matter, occurring prior to Employee’s execution of this Agreement;

    4. does not waive any rights or claims that may arise after the date that this Agreement has been executed;

    5. is waiving rights or claims in exchange for valuable consideration in addition to anything of value to which Employee is already entitled in the absence of a waiver;

    6. has been advised to consult with an attorney before signing this Agreement;

    7. has been given a period of twenty-one (21) calendar days within which to consider this Agreement, with the twenty-one (21) calendar day period beginning on insert date Agreement given to the employee; and

    8. has been given a period of seven (7) calendar days following his/her execution of the Agreement to revoke this Agreement, and the Agreement shall not become effective and enforceable until the revocation period has expired.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

FOR THE GRIEVANT: FOR THE AGENCY:
________________Date_____ ________________Date_____
Employee Name Deciding Official Name
Grievant Deciding Official Title
_______________Date______ _______________Date______
NTEU Attorney GLS Attorney
National Treasury Employees Union Office of Chief Counsel
General Legal Services

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