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]