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1. What is the purpose of this chapter?
2. Does this directive cancel an existing directive?
3. What references were used when writing this chapter?
4. Where is guidance for dealing with personnel actions based on unacceptable performance?
5. What are the preventive measures to be taken by supervisors?
6. What are the considerations in determining appropriate action?
7. What are the supervisory responsibilities?
8. What is the agency's policy concerning the filing of employee grievances?

1. What is the purpose of this chapter? This chapter provides Federal Highway Administration (FHWA) employees information regarding disciplinary actions, adverse actions, grievances, and appeals. Please refer to the attached chart outlining the administrative process. This chapter should be used in conjunction with the Departmental Personnel Manual (DPM) Letter 771-1, Agency Administrative Grievance System Handbook, dated May 18, 1988.

2. Does this directive cancel and existing directive? Yes. This directive cancels FHWA Personnel Management Manual (PMM) Part 1, Chapter 11, Disciplinary Actions, Adverse Actions, Grievances and Appeals, dated June 28, 1996.

3. What references were used when writing this chapter? Title 5, Code of Federal Regulations (CFR), Part 752; Department of Transportation (DOT) DPM Letter 771-1, "Agency Administrative Grievance System Handbook", dated May 18, 1988, as amended, FHWA Employee Handbook, "Guideline Table of Offenses and Penalties"; and Douglas vs. Veterans Administration, 5 Merit Systems Protection Board (MSPB), 313 (1981).

4. Where is guidance for dealing with personnel actions based on unacceptable performance? Guidance for dealing with personnel actions based on unacceptable performance is in PMM Chapter 5, Section 2, "Performance Management System."

5. What are the preventive measures to be taken by supervisors? Supervisors should address conduct and/or performance problems as soon as they occur. Supervisors should attempt to resolve these problems at the lowest level possible. If the issues require a formal personnel action, e.g., unacceptable performance, disciplinary or adverse action, the supervisor should discuss the issues with the servicing human resources office. If the supervisor observes a performance problem that might be resolved through professional counseling and/or rehabilitation, he or she should refer the employee to the Employee Assistance Program.

6. What are the considerations in determining appropriate action? The MSPB has established guidelines explaining the type of factors that should be considered in selecting a corrective action. If a disciplinary action is required, the supervisor considers the facts and determines and initiates the appropriate action. Discipline is intended to be corrective, rather than punitive. Not all of the following factors will apply in every case and additional factors may also be considered. Since the circumstances of each individual case will vary, these factors should not be treated as a mechanical formula. If an adverse action is appealed to the MSPB, it will review the action for consistency with these factors. The factors include, but are not limited to:

   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, technical, inadvertent, committed maliciously or for gain, or frequently repeated;

   2. the employee's job level and type of employment, including supervisory or financial responsibilities, contacts with the public, and prominence of the position;

   3. the employee's past disciplinary record;

   4. the employee's past work record, including the length of service, performance on the job, ability to get along with co-workers, and dependability;

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

   6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;

   7. consistency of the penalty with FHWA's table of penalties;

   8. the notoriety of the offense or its impact upon the reputation of the FHWA;

   9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been previously warned about the conduct in question;

   10. potential for the employee's rehabilitation;

   11. 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; and

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

7. What are the supervisory responsibilities? Every supervisor is responsible for promptly taking or initiating disciplinary measures or adverse actions when necessary. When a supervisor becomes aware of employee misconduct or delinquency, or if circumstances strongly indicate that misconduct or delinquency has occurred, he/she should promptly attempt corrective action through oral or written communication with the employee, or take other appropriate disciplinary measures as warranted. Supervisors should document all actions taken between the management official and employee in reference to any problems. Documentation may include records of previous disciplinary actions, investigative reports, time and attendance reports, evidence of reasonable accommodation, summaries of discussions, and/or counseling sessions.

8. What is the agency's policy concerning the filing of employee grievances? The procedures governing the agency administrative grievance system are contained in DOT DPM Letter 771-1. The grievance system is designed to promote clear communications, and it allows employees to obtain consideration of matters on personal concern or dissatisfaction that are under the control of FHWA management.