Do Douglas Factors Matter Even When Misconduct Involves Licking Child’s Feet?

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By Deborah J. Hopkins, October 15, 2024

Quick facts:

  • An employee pleaded guilty to a fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault).
  • The ensuing publicity identified him as a NOAA employee, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee.
  • The agency did a thorough and effective Douglas factor analysis.

While you’ve doubtless come across dozens, even hundreds, of removal cases involving a Conduct Unbecoming a Federal Employee charge, have you ever read a case where the conduct involved a Federal employee luring a 13-year-old boy into his house, taking him to a “room of pain,” and licking the child’s bare feet and toes? Sadly, there is a first time for everything. Soroka v. Commerce, DC-0752-20-0180-I-1 (Aug. 30, 2024)(NP).

The appellant, a GS-14 physical scientist for the National Oceanic and Atmospheric Administration (NOAA), was the Winter Weather Program Lead in the agency’s Severe, Fire, Public, and Winter Weather Services Branch. Id. at 2. The agency learned about his conduct only after he pleaded guilty to two offenses involving the child (fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault). Id. He was also placed on the Maryland Sex Offender Registry.

The ensuing publicity identified him as a NOAA meteorologist, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee:

  1. On or about and between July 15, 2017, and July 15, 2018, you had unconsented sexual contact with a minor of whom you had temporary care and custody, and responsibility for supervision.
  2. On or about and between July 15, 2017, and July 15, 2018, you assaulted a minor in the second degree.

Id. at 3.

He appealed his removal, claiming lack of nexus, but the AJ affirmed the removal. The Board upheld the AJ, but the final order was light on details, so I visited the initial decision (ID) for more information – and I discovered an absolute master class in Douglas factors preparation and deciding official (DO) testimony. I’ve left out citations and paraphrased some material for ease of reading, but all the below details on Douglas can be found in the ID.

Douglas factor 1: Nature and seriousness of the offense

The appellant’s misconduct was extremely serious. His position required him to demonstrate credibility and integrity. His misconduct violated the public trust and placed the agency’s reputation at risk.

Douglas factor 2: Job level and type

His position as the National Winter Weather Services’ program lead was a highly visible position within the agency. The position required the appellant to perform leadership functions for a key NWS program at a national level, and his role involved significant interactions with both NWS partners and the public.

Douglas factor 3: Past discipline

The appellant had no prior discipline.

Douglas factor 4: Work record performance

The DO considered the appellant’s above-average work record, and his length of service of over 25 years.

Douglas factor 5: Trust and confidence

The DO concluded the egregiousness of the appellant’s misconduct outweighed any mitigating factors. The appellant could no longer satisfactorily perform his duties because he could not publicly represent the agency in light of the notoriety of his misconduct. In addition, the appellant’s misconduct demonstrated a clear lack of judgment, which exacerbated the loss of trust and confidence.

Douglas factor 6: Consistency of discipline with comparator employees

The appellant identified a potential comparator who was also on the sex offender registry, in another state, who was not disciplined. But the proposing and deciding officials in this case were not involved in any disciplinary actions involving the other employee and were not even aware of the potential comparator case until two weeks before the appellant’s hearing – long after the decision to remove was made. In addition, the potential comparator did not hold a leadership role and worked primarily in internal programs, so he was not a proper comparator.

Douglas factor 7: Table of penalties

The penalty was consistent with the agency’s table of penalties.

Douglas factor 8: Notoriety and agency reputation

The appellant’s misconduct became highly notorious when it was widely publicized in local, national, and international media sources, such as Newsweek. In fact, the agency first became aware of the appellant’s criminal charges through media reports, which included the appellant’s photo, name, and his position with NOAA. This notoriety was highly damaging to the appellant’s credibility and to the agency’s reputation. In addition, the appellant’s photo and personal information were listed on the Maryland Sex Offender Registry, which has the serious potential to detract from the mission of NWS and NOAA, if anyone followed up on the story.

Douglas factor 9: Clarity of notice

The DO considered the clarity upon which the appellant was on notice that his misconduct violated any rules and testified that any reasonable human adult would know such misconduct was improper. The decision letter included the statement, “As a citizen and a public servant, you are aware that assault and sexual abuse of a minor is wrong and will not be tolerated. Even absent specific notice from the Agency, you should have known that the misconduct you engaged in was inappropriate; however, you knowingly engaged in those activities. This reinforces the point made above regarding your lack of judgment.”

Douglas factor 10: Potential for rehabilitation
The appellant did not demonstrate the potential for rehabilitation because he lacked accountability and blamed others, by referring to the victim as a troubled child and blaming an overzealous press for publicizing the story.

Douglas factor 11: Mitigating circumstances

No additional mitigating factors were identified besides the appellant’s lack of disciplinary history, 25 years of service, and above-average performance.

Douglas factor 12: Alternative sanctions

The DO testified that he did not take this decision lightly and he did not take any pleasure in this process. However, given the egregiousness of the appellant’s behavior and the lack of alternate, effective sanctions to appropriately address the misconduct, he had no alternative but to remove the appellant from his position.

This could be a model lesson for DOs for decades to come. I have to give kudos to Anna Bodi, the attorney of record on the ID, for so thoroughly preparing the DO. Even though the misconduct was egregious, it’s risky for an agency to not consider all the mitigating factors (if you don’t believe me, see this recent article about how an AJ reversed the removal of a law enforcement officer who bit his wife during a fight). [email protected]

Related training:

The Good News: It’s Simple, Proposing Official Should Do Douglas

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By Ann Modlin Boehm, October 15, 2024

Quick facts:

  • We are often asked by FELTG customers: Who should do the Douglas factor analysis?
  • We recommend the proposing official cover all 12 factors in the worksheet and attach it to the proposed discipline.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response.

It’s time for another edition of “Douglas and the Proposing Official.”  (Why does that sound like it could be a sitcom? I mean, who would have thought Parks and Recreation would be a thing?)

We have written a lot of articles about this topic, but questions still arise regularly about whether the proposing official, the deciding official, or both, should do the Douglas analysis. Here’s the answer:

  • The proposing official should do the Douglas We recommend covering all 12 factors in a worksheet attached to the proposal.
  • The employee then has an opportunity to meaningfully respond to the both the charge(s) and proposed penalty.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response, but not create a new, independent Douglas analysis in the decision.

It comes down to our good old friend due process.

Due process entitles the employee to notice of why discipline is being proposed, a meaningful opportunity to respond, and an impartial decision. Penalty is a key aspect of discipline, so due process applies.

The Douglas decision itself, way back in 1981, stated “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 the alleged factors . . . .” Douglas v. VA, 5 MSPR 280 (1981) (emphasis added). The Proposing Official should include the Douglas analysis in the proposal so that the employee has an opportunity to reply.

I know some of you are thinking, “But Douglas says ‘aggravating factors,’ and not mitigating factors, have to be in the proposal.”  Um, technically it does say that, but there can be a fine line between aggravating and mitigating factors. Better to include all of them in the proposal, just to be safe.

At one point, even the MSPB got confused about whether due process applied to penalty, so the Federal Circuit expressly stated that due process applies to the penalty part of discipline in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011). Ward noted “the importance of giving an employee notice of any aggravating factors supporting an enhanced penalty as well as a meaningful opportunity to address ‘whether the level of penalty to be imposed is appropriate.’” Id. (citing Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999)).

There’s also a practical side to all of this. Having the proposing official do the Douglas analysis, with the deciding official reviewing and assessing that analysis, also goes to the heart of what we at FELTG emphasize in ALL of our training – it keeps things simple. If the deciding official agrees with the proposing official’s Douglas analysis, the decision can say, “I have considered the penalty factors identified in the proposal, and I concur.” Done. Case closed.

Easy, right? That’s Good News! [email protected]

 

Complaint Doesn’t Fly, Thanks to a Swift and Effective Reply

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By Dan Gephart, October 15, 2024

Quick facts:

  • An air traffic control specialist and an agency operations supervisor entered a consensual sexual relationship.
  • The specialist alleged sexual harassment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity.
  • An EEOC AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant.

When faced with an allegation of sexual misconduct, there are two words you must remember as you contemplate action — swift and effective. While reacting wildly is not condoned, hesitation is imprudent and ill-advised. It could open up liability to the agency, and, even worse, leave an employee in a dangerous situation.

The recent EEOC decision Annice F. v. Buttigieg, EEOC App. No. 2022004327 (Aug. 22, 2024), underscores the importance of the aforementioned advice.

An air traffic control specialist filed a formal EEO complaint alleging the agency subjected her to sexual harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity. It started when an agency operations supervisor (AOS) was assigned to work alongside the complainant’s team. The AOS was not the complainant’s supervisor. However, due to the nature of his training and staff shortages, AOS sometimes provided operational instructions to the complainant and others on her team.

Soon after the AOS started working with the complainant, they began a consensual sexual relationship. However, that relationship ended abruptly when the complainant learned the AOS lived with his girlfriend and had multiple other sexual partners.

Later that year, the complainant told two supervisors of her intention to file a discrimination claim. She provided details of the relationship, explained the difficulty of working alongside the AOS, and shared concerns for her safety.

Now, imagine you’re one of these two supervisors, what would you do?

The supervisors told the complainant to contact local law enforcement, and advised her the agency would conduct an immediate investigation. That very same day, one of the supervisors reported the complainant’s allegations and prior relationship with the AOS to the agency’s Accountability Board in order to initiate a prompt investigation about sexual misconduct, potential gun violence, and involvement by local law enforcement for the safety of all parties.

Meanwhile, that same supervisor instructed management officials to immediately limit interactions and work projects between the AOS and the complainant. Soon after, the AOS was moved to a different team.

The supervisor also investigated the complainant’s claim that the AOS had guns in his vehicle on Federal property. No guns were found in the AOS’ vehicle, and the complainant admitted she never saw guns in his vehicle at work, just that he owned guns and stated he kept them in his vehicle.

Several days later, the complaint contacted a crisis hotline. She told her supervisors, who then sought guidance from the agency’s medical division. Citing the high pressure and national security implications of the air traffic control specialist position, the agency’s flight surgeon temporarily terminated the complainant’s medical clearance. A medical diagnosis is not needed to terminate clearance, only a concern that the employee’s physical or mental state could impact the performance of their job. Shortly after the complainant’s clearance was reinstated, she filed the claim.

The complainant alleged:

  1. She was harassed and subjected to a hostile workplace environment, resulting in disparate treatment.
  2. She was seduced, lied to, and coerced into having sex with a manager, under the belief that she was going to have a romantic relationship with him. Instead, however, the AOS used his position to convince her to have sex in order to benefit his own work environment, including assaulting and raping her on several occasions.
  3. She saw guns in the AOS’ car at work; however, nothing was done, and the guns were not removed.
  4. She went to the police and was told that she was not in any imminent danger; thus, she was unable to file a restraining order; and the AOS had since been moved to another facility.
  5. The agency removed her medical clearance as a result of her filing this EEO claim.

The EEOC AJ issued a bench decision that found the evidence established the agency took appropriate, prompt, corrective action in response to the complainant’s reports of sexual misconduct by the AOS and a potential gun violation on Federal property. Regarding the allegations of rape, the complainant was directed to local law enforcement.

The evidence also reinforced that the AOS was not a supervisor who was empowered to hire, fire, reassign, or take any other employment action against the employee, or make any decision that would affect her benefits or terms and conditions of her employment.

The AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant. The complainant appealed, and the EEOC concurred with the AJ.

But it was not only the swiftness of the supervisors’ actions, but also the effectiveness, that EEOC found appropriate. This is particularly critical when the allegations include firearms on workplace grounds and sexual assault. [email protected]

Related training:

 

Keep Accommodations on the Radar After Workers’ Comp Claims

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By Frank Ferreri, October 15, 2024

Quick facts:

  • A mail carrier had a string of injuries over several years that resulted in workers’ compensation coverage and absences from the job.
  • The carrier’s supervisor repeatedly misclassified her time off and allegedly made derogatory remarks about her disability being a “lifestyle.”
  • Due to a lack of evidence about accommodations and the carrier’s status as a “qualified individual,” the court dismissed her Rehabilitation Act claim.

When a workers’ compensation scenario arises, chances are an employee has a disability that could find coverage under the Rehabilitation Act and be subject to that law’s requirements regarding reasonable accommodations.

However, an on-the-job injury doesn’t automatically trigger accommodation duties with no other documentation. As the court in Johnson v. DeJoy, No. 23-2342 (D.D.C. Sept. 17, 2024) explained, the employee still has to show an accommodation exists that it will allow her to perform the essential functions of her job.

Many years, multiple injuries

A full-time mail carrier was involved in an incident on the job where she reported that she was “wrongfully accused of hitting a customer with her mail truck and leaving the scene.” According to the carrier, she was sent home for about eight months before being offered her job back and was not paid for “the pain suffered” as a result of the incident.

After she returned to the job, and while she was two months pregnant, the carrier fell down a flight of stairs while delivering mail. She injured her lower back and tailbone, which required medical treatment and resulted in the loss of her pregnancy.

Because of the accident, the carrier suffered from “a severely depressed mood, anxiety, and symptoms of post-traumatic stress.” She was eventually diagnosed with bipolar disorder and post-traumatic stress disorder. The carrier sought FMLA leave, which was denied.

Later, the carrier took leave approved by the Office of Workers’ Compensation Program (OWCP). When she returned to work, she requested reasonable accommodations. According to the carrier, the agency responded “by creating a hostile work environment and retaliating against” her and by refusing to sign and return her leave slips and improperly coding her OWCP-approved leave as AWOL and LWOP.

After contacting an EEOC counselor, the carrier received and signed an Offer of Modified Assignment but did so “under protest,” as her new schedule interfered with her childcare responsibilities.

Eventually, the carrier and the agency reached a settlement agreement under which her supervisor would sign and return her leave slips and correct leave that had been improperly recorded.

The carrier returned to work. Within a few days, she was chased by a dog, fell, and injured her right wrist, shoulder, lower back, and both knees. After some delay, the OWCP accepted her request for continuation of pay (COP). Again, however, the supervisor improperly coded her absences as LWOP or annual leave.

Human resources informed the carrier her health benefits had been terminated because she had not remained in a pay and duty status for eight pay periods, prompting another EEOC complaint and instruction from OWCP for the agency to provide the carrier with a job that complied with her medical restrictions.

The carrier returned to work and, on several occasions, was required to perform work in violation of her medical restrictions. Again, the carrier had to take leave and again had her absences misclassified.

Following an alleged statement from the supervisor that the carrier’s disabilities were a “lifestyle,” the carrier brought a Rehabilitation Act claim, alleging a failure to accommodate.

The carrier’s case

Under the Rehabilitation Act, agencies must make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability. To be a “qualified individual,” an employee must be able to perform the essential functions of a job with or without reasonable accommodation. While a determination that an employee is not a qualified individual is rare on a motion to dismiss, it can be appropriate where an employee has not indicated that she could perform the essential functions of her job and has not identified a reasonable accommodation that would allow her to do so.

The court granted the agency’s motion to dismiss the carrier’s failure to accommodate claim. She failed to allege what her essential functions were and to present relevant reasonable accommodation options to the court.

“Rather, [the carrier] merely states that a ‘reasonable accommodation would have allowed her to fulfill all essential functions of her job,’” the court wrote, explaining that such a statement was “a legal conclusion that the court need not accept as true.”

The court noted the only evidence the carrier presented as to qualification was her assertion that she was “otherwise qualified for her position,” due to her long and successful employment history.

The court interpreted this argument as the carrier asking it to infer from her employment history that she could perform the essential functions of her job with or without reasonable accommodations.

Lesson for agencies

The court wrote that “it is unable to make this inference,” due to a lack of evidence on whether and to what degree she was impaired, and how the nature and severity of her impairments evolved over the course of about 12 years. Thus, the court found the carrier had not stated a Rehabilitation Act claim.

When an employee is dealing with matters involving workers’ compensation, it is not a bad idea to consider whether accommodations might be in order. At the same time, an agency will not be at fault for breakdowns in the interactive process when an accommodation has not been proposed, so as to allow an employee to perform the essential functions of her job or desired role.

Similarly, if a case ends up in court, and an employee doesn’t have the details on what makes her qualified for her job, the court will have a hard time moving ahead with the case. The agency didn’t do itself any favors by continually mixing up how the employee’s time off was recorded (or not, as it were). The court doesn’t tell us much about the emotional backstory of the case, but it’s not hard to imagine an employee feeling frustration from the kinds of repeated mistakes the carrier had to deal with.

Remember, COP is an entitlement for Federal employees injured on the job in which the agency continues to pay an employee her regular pay during a period of disability for up to 45 days. In this case, the mix-up interfered with that benefit. As a result, it affected the carrier’s finances.

Mistakes happen, but when they keep happening, it can turn the temperature up on a dispute and bring a case into court that might have had a quicker, easier resolution. [email protected]

Related training: