In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.
Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.
A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.
Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”
On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.
Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?
A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.
Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.
That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.
A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.
One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).
This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. [email protected]