By Dan Gephart, March 11, 2024
With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.
The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.
Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.
1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”
The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”
This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”
2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.
But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.
Why the lofty word choice for a non-precedential decision?
Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.
3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.
However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”
Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. [email protected]
