Douglas factors for federal employee disciplinary cases are critical. There are typically two parts to a federal employee’s disciplinary case: (1) whether the federal employee committed the offense charged; and (2) if they committed the offense, what should the penalty be? One of the most significant issues in defending a federal employee in disciplinary cases involves arguing for mitigation of the penalty in a disciplinary case. Arguing for mitigation generally means that we argue for the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case.
The Douglas factors, in federal employee cases, are also referred to generally as mitigating factors. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981).
In Douglas, the Merit Systems Protection Board (MSPB) established 12 different factors that should be considered by a deciding official when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an MSPB appeal for a federal employee client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. In sum, it is critical for federal employees to understand the Douglas factors or to have counsel that does.
The following is a list of 12 Douglas factors that should be taken under consideration if a disciplinary action is warranted with explanations as to how they can apply to a particular federal employee case.
THE DOUGLAS 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, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.
The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. This has often been considered one of the most important Douglas factors by the MSPB. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a supervisory position. The first Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (i.e. a repeat offense) and whether the misconduct at issue was intentional. Generally, this Douglas factor one tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty in a given case.
(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
The second Douglas factor for federal employees involves the level of federal employee a case involves. It is traditionally used to attempt to aggravate a disciplinary penalty, as opposed to mitigating one. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisor, such as GS-15) or type of position (e.g., law enforcement) as an aggravating factor. Many agencies may attempt to overplay their hand with this Douglas factor, but the MSPB will typically assess a position based on their own evaluation.
(3) The employee’s past disciplinary record.
The third Douglas factor involves an evaluation of a federal employee’s past record. The use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors. This factor is generally used for purposes of mitigation unless an employee has a past disciplinary action, which is cited. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. For instance, if the federal employee at issue has worked for the federal agency involved for 25 years and has never received prior discipline during that time this can be used as an argument in mitigating the disciplinary penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Sometimes, this third Douglas factor may be confused by federal agencies who attempt to aggravate a disciplinary penalty by basing it on previous misconduct that is not similar to the current action.
(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
The fourth Douglas factor is one of the most often used arguments we use in support of mitigation of a disciplinary penalty. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty.
It is important to argue Douglas factor four with supporting documentary evidence (e.g., commendations, awards, copies of performance records, letters of commendation, letters about performance by supervisors or members of the public, letters of support) as you move forward.
(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.
Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time after the underlying allegation has occurred and been known. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing so that they must have been trustworthy.
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
This Douglas factor comes into play when an agency picks and chooses different penalties for similar level federal employees. This occurs quite often. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by a federal agency between different federal employees. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.
(7) Consistency of the penalty with any applicable agency table of penalties.
Federal agencies may attempt to base a proposed or final penalty based on an agency’s table of penalties. A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agency’s table of penalties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.
(8) The notoriety of the offense or its impact upon the reputation of the agency.
This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, this factor comes into play when a federal employee’s alleged misconduct has been reported by the media (press or television). We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished. It is important to rebut these issues in a Douglas factor defense.
(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
The ninth Douglas factor is important and is used in many cases where the policy that has been allegedly violated is not clear. In particular, the “lack of clarity” argument refers to the rules governing the underlying allegations at issue. Typically, a federal employee will be proposed for a disciplinary action in a case based on a violation of a particular agency policy. It can often be the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. For example, we might argue that the lack of a clear agency policy on Internet usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government resources.
(10) The potential for the employee’s rehabilitation.
The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.
(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.
This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Our firms often uses this Douglas factor to highlight personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This is the most important Douglas factor for federal employees that we see.
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
While not often used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal).
Douglas factors for federal employees to understanding potential penalties in pending adverse/disciplinary action or during the course of an MSPB appeal. As a result, it is very important for a federal employee to argue all relevant Douglas factors and provide documentary evidence (e.g. declarations, affidavits, performance ratings, SF-50s, letters of commendation) for the record.
Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues.
We represent federal employees in Merit Systems Protection Board (MSPB) appeals. In other articles we go into more depth about various individual aspects of the MSPB appeals process, but this article focuses on a general summary of what to expect during the MSPB appeals process. There are sometimes some differences between appeals, but for the most part the major parts of the appeals process follow below.
A. Filing the MSPB Appeal
The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal over an action that they have plan to challenge. In most cases, the MSPB hears cases involving serious discipline (i.e. removal; suspensions over 14 days, demotions). There are deadlines for filing an MSPB appeal and it is fairly strict. Typically, a federal employee has 30 days from the effective date of the adverse (the discipline) action to file an appeal. The MSPB appeals process has mostly transitioned to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.
B. Receipt of the Acknowledgment Order
Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is usually about 12-5 pages in length (depending on the specific issues in the case) and provides a significant amount of information about the processing of the individual MSPB appeal. After receiving the Acknowledgment Order it is very important to calendar all of the deadlines in the case.
C. Filing of the Agency File and Narrative Response
Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge assigned to the case will require the federal agency involved in the appeal to provide their agency file on the case to the MSPB and to the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial summary response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.
D. Holding of a Status Conference
Not all of administrative judges conduct these, but we have found that most administrative judges will schedule a status conference following the receipt of the Agency File and sometimes even before. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. It is often the case that an administrative judge will attempt to move the parties towards talking settlement as early as possible. A status conference may lead to mediation or other alternative dispute resolution efforts.
E. The Discovery Process
MSPB appeals are much like civil litigation cases, except on a quicker timeline. A part of the MSPB appeals process will involve discovery. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit their initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s (federal employee’s) chance to obtain documents, reports, statements, correspondence, emails, video, audio which the Agency possesses and which could be used during the hearing in defense of the action. One of the most significant parts of the discovery process includes the ability to question, under oath, key witnesses by taking their depositions. Depositions can help get to the specific facts that may not have been uncovered earlier. For instance, if a federal employee has been accused and removed for allegedly threatening another employee in front of others, it is important to depose the other employees that witnessed the events.
F. Requesting a Case Suspension
At any point in the MSPB appeals process, often during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension essentially freezes the MSPB litigation so that parties can complete certain tasks, such as completing discovery or to engaging in settlement talks or mediation. A case suspension can last up to 30 days and if needed a second one case be requested. Case suspensions are at the discretion of the Administrative Judge. Case suspensions can be important when more time is needed to work out a settlement agreement or to finish taking depositions of other relevant witnesses.
G. Affirmative Defense Filings
When MSPB appeals involve certain types of defenses, such as discrimination claims, whistleblower defenses or military discrimination (USERRA) claims, an administrative judge is likely to order the Appellant to prepare a summary of their arguments for these issues. The Agency will have the opportunity to respond to such arguments with their own take on these types of defenses.
H. Pre-Hearing Submission
Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party. These generally include the parties’ versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the case. It is important to include the details behind the relevance for each witness and document. Generally, administrative judges (for most cases) will permit 5-9 witnesses in a case. Administrative judges vary on the admission of witnesses, so an appellant or their counsel must be prepared to argue for the relevance of their witnesses at the pre-hearing conference.
I. Pre-Hearing Conference
The next step prior to the MSPB hearing involves the actual pre-hearing conference. During the conference, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other potential issues likely to come up at the hearing. As mentioned above, each party will want to be prepared to argue for their position during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance. For exhibits, administrative judges vary on whether they will admit exhibits during the conference or defer to the hearing for such decisions.
J. The MSPB Hearing
The MSPB hearing typically takes about 1-2 days depending on the number of witnesses involved and the complexity of the case. During the hearing, there will usually be opening statements by both parties of 5 to 15 minutes. Following opening statements, there will be the examination and cross-examination of witnesses for both sides. In disciplinary cases, the Agency will typically put on their case first as the federal agency bears the burden of proof. It is usually the practice of administrative judges that if both parties call the same witness that both parties examine the witness at that time. In other words, if the Appellant is called by the Agency, then the Appellant’s attorney would conduct their examination of Appellant right after the Agency has done so. This procedure can vary. After the Agency puts on their witnesses, the Appellant will be allowed to do the same.
A court reporter will transcribe all of the testimony given and the MSPB will make the CD of testimony available to both sides following the hearing. Finally, there may be closing arguments and/or written closing submissions prior to the end of the hearing. In most cases, closing arguments are completed by both parties after the end of testimony as opposed to in written briefs. After the hearing, the Administrative Judge will then issues a written decision usually completed 3-6 weeks after a hearing is held.
K. Filing an Appeal of an Adverse MSPB Decision
Should an MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of receipt of the decision. The are specific grounds for an appeal to the full Board of the MSPB, such as errors involving facts and conclusions of law. The legal basis for granting an MSPB appeal falls under 5 U.S.C. § 7701(c)(2). The appealing party can win an appeal if they are able to show:
(A) harmful error in the application of the agency’s procedures in arriving at such decision;
(B) that the decision was based on any prohibited personnel practice described in 5 U.S.C. § 2302(b); or
(C) that the decision was not in accordance with law.
Generally, such appeals can take 8 months to a year, to obtain a decision following the filing of a PFR so long as the Board has a quorum (at least 2 members). If the PFR is affirmed, other appeals options are available to the parties.
In sum, when filing an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.