We recently received the following question via Ask FELTG.
Dear FELTG: An attorney in my agency’s legal office told me I am not allowed to rely on an employee’s past suspension as prior discipline in a Douglas factors analysis if the suspension is more than 10 years old. Is that true?
Thanks for the question. While there is an old MSPB case that discusses how reliance on a suspension that occurred more than 10 years before was too far removed in time to be an aggravating factor, that case does NOT say that any discipline more than 10 years old can never be relied upon. Kehrier v. DOJ, 27 M.S.P.R. 477 (1985). We’ve come across more than one interpretation of Kehrier over the years. So here are some thoughts from the FELTG perspective.
The Board has never made a blanket prohibition on how far back in time an agency can consider discipline.
In Kehrier, the judge (known back then as a “presiding official”) found that a suspension that occurred 10 years prior “was too remote in time to be of significance with respect to the present charges” against the appellant. Kehrier, 27 M.S.P.R. at 480. But, in reviewing the initial decision the Board pointed out the lack of consideration of that suspension had no bearing on the outcome of the case given the seriousness of the current misconduct. Id.
In other words, in Kehrier, the Board never actually weighed in on whether going back beyond 10 years was appropriate or too far removed in time as a general principle. And in the four decades since the decision was issued, the Board has never used Kehrier as authority to find error in an agency’s considering a suspension older than 10 years.
In fact, the Board has explicitly stated, as recently as March of this year, that “none of the case law seems to bar consideration of prior discipline due merely to passage of time, [but] we find that passage of time may go to the weight that the prior discipline should be accorded, along with the severity of the prior discipline and whether the current disciplinary action is being taken for similar reasons.” Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)(NP).
Ybarra, which we wrote about previously in this newsletter, involved the 2017 removal of an FBI agent for unprofessional off-duty conduct after he made “persistent and inappropriate advances” toward two underage females. Id at 2. In its decision, the agency relied on a 45-day suspension the appellant had served 14 years prior for inappropriate sexual conduct toward female colleagues. The prior suspension also came with an “explicit warning that it was his ‘second and final notice that offensive interpersonal interactions will not be tolerated…’” Id. at 3. Because of the warning, and because the conduct 14 years prior was similar to the conduct in the current case, “notwithstanding the significant passage of time, we agree with the administrative judge that the agency did not abuse its discretion in giving the appellant’s 2003 suspension significant weight as an aggravating factor.” Id.
The more recent (and similar) the prior discipline, the more aggravating.
The Board also identified a few cases where the recency of past suspensions was an aggravating factor:
- Boscoe v. USDA, 54 M.S.P.R. 315, 326 (1992) (noting that the appellant had been suspended “[j]ust six months prior to the offenses involved in this appeal.”)
- Gleason v. Army, 38 M.S.P.R. 547, 549 (1988) (affirming the initial decision in which the administrative judge found that the seriousness of the appellant’s offense was greatly aggravated by his recent prior disciplinary record for similar misconduct).
- Griffin v. Army, 15 M.S.P.R. 738, 740 (1983) (noting that the appellant had been suspended twice within the previous 5 months for the same offense.)
Ybarra at 3.
An agency policy or CBA might set time limits on prior discipline.
While rare, if an agency policy or union contract defines a reckoning period for past discipline, the Board will defer to the policy or contract and would find it improper to rely on expired discipline for Douglas factor 3. See Lewis v. USAF, 51 M.S.P.R. 475, 485 (1991). However, expired discipline may still be used under Douglas factor 9, clarity of notice.
Douglas requires individualized considerations.
In a case of discipline: “The fundamental requirement is that agencies exercise responsible judgment in each case, based on rather specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.” Douglas v. VA, 5 M.S.P.R. 280, 303 (1981)(bold added). So, applying the strict penalty assessment facts of one particular case to every future agency disciplinary action, absent an express requirement by the Board to do so, is too restrictive and may actually work against the purpose of Douglas to help an agency make individual penalty considerations.
TL; DR: There is no prohibition against relying on suspensions more than 10 years old as past discipline under Douglas factor 3. However, the further back in time the suspension was served, the less weight it holds as an aggravating factor.
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