By Dan Gephart, September 18, 2019

Here at FELTG laboratories, we create training that teaches the no-nonsense way of doing things, especially as it pertains to handling misconduct. You know the saying that the straight line is the quickest and easiest way to get somewhere? FELTG teaches that straight line on discipline.

Sometimes, however, we hear from attendees who, in the words of Col. Nathan R. Jessup, “can’t handle the truth.” These encounters usually start with something like … “but our HR Office says” or “our counsel told us differently.”

If you’ve been a part of MSPB Law Week or Developing & Defending Discipline, or sat in on our flagship UnCivil Servant training, you know that we teach that the Douglas Factor analysis should be included with the advance notice, or proposal. Heaven forbid! You’d think we were suggesting you fire off a nuclear weapon to stop a hurricane. “Who told you we should do that?” “Where is that in the law?” “Where’s the case law on that?” This hasn’t happened once or twice. This has happened numerous times, and continues to happen.

There is no mystery, and we’re going to address it right here, right now. The reason for including the Douglas analysis in your proposal letter is three-fold: There’s the concept of due process, as well as a statutory reason, and, yes Virginia, there is case law – the original Douglas decision.

Let’s get the answers directly from the brain of FELTG Past President William Wiley, co-author of UnCivil Servant: Holding Government Employees Accountable, 5th edition. After all, Bill is the one who has been challenged on this point more than anyone else.

Let’s start with due process.

Bill: The concept of fairness in our business requires that we tell an employee why we want to fire him so that he can defend himself before a final decision is made. We cannot have secret reasons for firing an employee. If a practitioner cannot agree with that fundamental principle of due process, we have little hope in moving them forward toward the right answer. An explanation of why we’ve chosen the penalty we have chosen is basic to employees being given a chance to defend themselves. For example, say that an employee engages in a loud profane argument with his supervisor. One reason the Proposing Official might think that such misconduct warrants removal rather than something less is because the argument took place in front of members of the public. The employee should be informed of that aggravating factor in the proposal notice so that he can argue that the argument did not take place in a public area, or that it was not in fact actually heard by a member of the public. We teach that by including a Douglas Factor analysis along with the proposal, we put the employee on notice of the reasons we selected the penalty of removal, thereby providing due process and an opportunity for defense.

Now, the law.

Bill: The proposal notice must state the “specific reasons” for the proposal. 5 USC 7503(b) and 7513(b). The selection of a particular level of penalty is intimately related to the “specific reasons” that a removal has been selected, rather than a lesser penalty. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) for a decision in which the court slammed the Board for denying due process relative to the penalty analysis.

And, finally, case law.

Bill: The Douglas decision itself says that the aggravating penalty factors ”should be included in the advanced notice.” A Douglas Factor analysis, I will concede, contains both aggravating and mitigating factors. The reason to do a complete Douglas Factor Worksheet along with the proposal notice is to avoid a misunderstanding as to what constitutes an aggravating factor as compared to a mitigating factor (or a neutral factor). If we took the narrower approach and just included what we considered to be aggravating factors in the proposal – rather than the full Douglas Factor analysis – we run the risk of omitting a factor that, on review, the Deciding Official decides is indeed aggravating.

This is where agencies sometimes mess up. Length of service is one of the most-used Douglas Factors, and we’ve seen it presented as an aggravating factor and a mitigating factor. Which is it? Shouldn’t matter for the Proposing Official. Simply include the fact that the employee has five years of service in the Douglas analysis. That allows the Deciding Official to make his or her own judgment on how to consider the length of service.

The harder question to answer is why this concept is so hard to believe. Maybe it’s because judges seem to have little interest in what the Proposing Official thinks about the penalty selection. When it comes to penalty, the judge wants to hear from the Deciding Official. But the Deciding Official will make his/her conclusions based on the Douglas Factor assessment.

And while you’re at it, include the Douglas Factor worksheet with the proposal notice, too. Why do that? Mark your calendars for the next MSPB Law Week on March 9-13, 2020. Gephart@FELTG.com

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