Ask FELTG: Is it recommended or not recommended to have a Proposing Official complete the Douglas Factors analysis, in addition to the Deciding Official?

Back in 1981, the Douglas decision itself said that the Douglas factors should be included in the Proposal Letter, thereby requiring the proposing official to do a Douglas factor analysis. Here’s a direct quote from Douglas:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

The “advance notice” is what we call the proposal letter, so there it is in black and white. Occasionally, we run into a practitioner who wants to argue that only the “aggravating” Douglas factors have to be included in the Proposal Letter, not ALL of them. Well, that’s correct. But do I really want to get into a fight about whether a particular factor is aggravating or mitigating? For example, is an eight-year length of service aggravating or mitigating? The smartest thing to do is include all the Douglas factors in the proposal, thereby satisfying the mandate in Douglas without the risk of mistakenly calling something mitigating when a judge decides it was actually aggravating.

Due process requires that we notify the employee why his removal is being proposed (thereby allowing him to defend himself), then make the decision. That notice goes into the Proposal Letter, followed by a decision on the proposal in the Decision Letter. In 2009, the Board said that it was OK for the Decision Letter to contain penalty factors not in the Proposal Letter, reasoning that due process did not require prior notice of facts related to the penalty, only to the actual misconduct. Well, the Federal Circuit Court of Appeals thought that was stupid and reversed the Board, thereby ruling that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, 2010-3021 (Fed. Cir. 2011).

If you think about it, it just makes sense. The employee should be allowed to defend himself, to correct the record BEFORE a decision is made. If the Proposal Letter does not contain the Douglas factors, and the Deciding Official relies on an incorrect Douglas factor (e.g., mistakenly believing that the employee has poor performance or did not apologize for the misconduct), the employee has been denied the opportunity to defend himself.

Given that Douglas requires that the penalty factors be in the Proposal Letter, and that Ward prohibits the Deciding Official from considering any penalty factors not in the Proposal Letter, here’s the best practice that we now teach:

If the DO agrees with the Douglas factor analysis of the proposal, he says nothing extra about the penalty assessment. Instead, the decision letter says something like this: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” That way, he avoids a Ward mistake.

If he disagrees with the assessment of the Douglas factors in the Proposal, or wants to consider other penalty facts that were not in the proposal, the safest thing for him to do is to notify the employee of these extra ruminations, and allow her to respond. Otherwise, he runs a risk of a due process violation. He may get away with not taking this extra step, but we don’t believe in taking chances when we can avoid them. We are exceedingly careful, at least when it comes to defending a removal.