Q & A with a Merit Systems Protection Board Representative

Q & A with a MSPB Representative

Today we’re going to be doing a question and answer session with a Merit Systems Protection Board, MSPB representative. We will be speaking with attorney, Mike Ivancie, founder of the Ivancie Law Practice.

Q: So, for starters, what is the Merit Systems Protection Board or MSPB?

The Merit Systems Protection Board (wiki) is a little-known administrative judicial agency in the federal government that is responsible for primarily adjudicating the disciplinary cases of federal employees. The MSPB handles other issues as well, but the bulk of its work is related to disciplinary actions of federal employees, more commonly referred to as adverse actions. An adverse action is a reduction in payer grade, a suspension of more than 14 days, and furloughs of 30 days or less.

Q: Who can represent a federal employee at the MSPB?

Interestingly, there’s no limitation on who can represent a federal employee at the Merit Systems Protection Board. If a federal employee wanted, they could have their brother or sister, anyone, any non-attorney or attorney represent them. This doesn’t mean that an employee should necessarily have a union steward who’s not an attorney or someone not versed in MSPB and federal employment law represent them. Generally, an attorney that has experience litigating these kinds of cases is best situated to represent a federal employee before the MSPB.

Q: How do I file an MSPB appeal?

So, if you’re a federal employee and you think you want to file an MSPB appeal, it really depends on the kind of case that you have. As I mentioned earlier, typically a federal employee encounters the MSPB through challenging a disciplinary action that they’ve received on the job. Most commonly, what will happen is an employee will be served with a proposal letter notifying them of the discipline that the agency is seeking against them and the basis for that discipline. Following the proposal letter, the employee will have the opportunity to respond and give a written or oral reply to the responsible agency official, most often referred to as the deciding official, for that disciplinary action.  After submitting a reply, or not submitting a reply, typically within 30 to 60 days, the agency will then issue a final decision on the disciplinary action. Following that decision letter, it should include notification of appeal rights and typically within that, if your disciplinary action meets the level of adverse action qualification, which we talked about earlier; suspension of more than 14 days, or removal or reduction in grade or pay, then you can appeal your case to the MSPB. Generally, you only have 30 days to appeal the case to the MSPB and your appeal rights will generally be listed in that final decision letter that you receive from the agency.

You can also watch our video on completing the appeal form here:

 

Q: What other kind of cases are heard at the MSPB?

As mentioned earlier, disciplinary cases are the most common kind of case heard at the MSPB, but additionally, the MSPB can review Office of Personnel Management (OPM) decisions, adjudicate cases related to the re-employment rights of veterans and other employees, whistleblower appeals, and in rare or limited circumstances, adjudicate probationary terminations.

Q: Is it better for my case to go to the MSPB or the EEOC?

Well, again, unfortunately, it depends. It depends first on whether or not your case can properly be before the MSPB and the EEOC. Certainly, if you’re raising allegations of discrimination under Title VII or some other law that is in enforced by the Equal Employment Opportunity Commission, then you can take your case there, however, jurisdiction at the MSPB is very limited. You can’t bring a pure discrimination case to the MSPB, such as a hostile work environment claim. It has to have some sort of other jurisdictional hook to give the MSPB jurisdiction over your case. So, let’s say for example, you’re issued a 30 day suspension. Well, that would be properly before the MSPB. They would have jurisdiction over your case as an adverse action. Further, let’s say you believe that the 30 day suspension was a result of discrimination. Well, then you could raise that issue at the MSPB as well, but you could also raise it at the EEOC.

So, what are the advantages and disadvantages of the two venues? Well a large advantage of the MSPB is that cases are decided, generally very quickly. As discussed earlier, a case will usually be adjudicated within 120 to 220 days, whereas depending upon what region you’re in, an EEOC case can take years, multiple years, to decide. There’s not as hard or fast limitation for case processing at the EEOC, whereas the MSPB tries to honor the 120 day deadline as much as it can. The EEOC also has a much larger caseload, especially in some of the regional offices, like the Los Angeles regional office. So, if you’re seeking a quick redress, then the MSPB may be a better venue for you. However, a lot of federal employees think that the MSPB is not as favorable to them and maybe with some good reason, since the MSPB released statistics in 2014 suggesting that federal employees typically lose their cases more than 70% of the time. This may be a function of the board not being that favorable to employees or that federal employees are not hiring savvy federal employment law attorneys, or possibly fighting cases that lack merit all the way through decision. And generally, as we discussed earlier, only the most serious cases of misconduct really generally reach its way to the MSPB.

Q: How long does it take a typical MSPB case from start to finish?

Well, the MSPB has a general rule that cases should be adjudicated within 120 days of them being docketed with the local regional office. In practice, this rule is not hard and fast, so some cases go over the 120 days. Actually more often than not they do go over the 120 days. Additionally, complicated federal employment cases before the MSPB typically have an extension granted at least once or twice. A judge has the ability to grant up to two 30 day case suspensions to allow the parties more time to engage in discovery, settle the case, or just to accommodate various working schedules.

After a case is docketed with a MSPB regional office, for example, San Francisco, the case will be assigned to a administrative judge (AJ). This AJ will then  issue what is called an acknowledgment order. This order basically acknowledges the beginning of this new case and notifies the parties, the federal employee, and the federal agency of their rights and obligations going forward related to this case. An acknowledgment order is probably the most important document in an MSPB case because it lays out deadlines for discovery. The judge’s expectations for the parties going forward and it provides notice to the appellant, the federal employee that they need to declare a representative, if they’d like to have one. As discussed above, a federal employee can designate any representative they want.

Q: Can am employee change their representative after starting a case at the MSPB?

The answer to that is yes, absolutely they can. A federal employee has the absolute right to select who represents them. It’s not compulsory that they have the same representative from the start to the finish of the case. Nor do they have to choose the union to represent them. Generally, it’s advisable and it’s a good idea to stick with the same representative, but there is no requirement or rule that you’re locked in once you hire someone. Indeed, I’ve taken over for other attorneys and non-attorney’s as the representative after a case has been docketed and the acknowledgment order has been issued.

Q: What is the purpose of the acknowledgment order?

Well, I address this question briefly above, but an acknowledgment order lays out the framework of the case and the expectations of the judge. Once you have an acknowledgment order, your case has been docketed and it’s time to take it very seriously. The deadlines that a judge gives you in the acknowledgment order are ironclad and you can expect that if you miss deadlines, you will not necessarily be punished, but there will be repercussions that can affect your case dramatically. One of those big deadlines is the deadline for discovery.

Q: What is discovery?

Discovery is the opportunity for the parties involved in  litigation, for example here at the MSPB to seek out relevant evidence, such as memos, letters, emails and other evidence the opposing party already has in their possession.

Discovery is very important because generally, disciplinary actions are required to follow a certain procedure and the action must comport with the Douglas factors. Accordingly, you can use discovery to gather information to find out if the agency’s disciplinary action was consistent with these required procedures. Additionally, you can find information in discovery about comparator employees, other employees that were potentially treated better than the employee-appellant at the MSPB and you can use discovery to find information about potential bias, discrimination, and other case-specific issues.

To give an example, let’s say an employee is terminated for AWOL, and let’s say there’s a dispute as to whether or not an employee was consistently tardy. Well, discovery allows you to gather information from the agency to find out whether or not that employee really was tardy, whether the agency documented that tardiness, whether there were access logs showing when that employee logged into their computer every day or swiped through security every day. These are very relevant documents and pieces of information that would help prove or disprove a theory in the case.

That turns me to what the idea of what discovery is all about: it’s really meant to find documents that are relevant to a specific case that tend to prove or disprove a specific fact that is relevant to that case. So, as an employee that’s representing himself, they need to keep in mind that discovery is not to be abused. It needs to be used to ask for information relevant to your case. So, discovery requests like, I want the tax returns of my former supervisor for the last decade, unless that has any connection to your disciplinary case, which it’s highly unlikely that it does have any connection, that would be an inappropriate discovery request . The judge would deny it and it’d be likely that the judge would warn an unrepresented appellant not to make requests of that nature. In some instances there could be sanctions or some sort of order from the judge that would affect the appellants case going forward if they really try to abuse the discovery process.

One more thing about discovery I’d like to add is that it really is a critical part in the case of a federal employee related to disciplinary action. Generally you only have 20 to 45 days to initiate discovery (depending on the AJ) and if you fail to initiate discovery within that time line, you waive your right entirely. If you cannot conduct discovery in a case, it’s kind of like fighting a case with one arm tied behind your back. It’s greatly limiting if you cannot engage in discovery. I’ve had clients come to me before where they’re seeking representation after discovery is closed or the window to initiate it has since lapsed and I tell them ‘discovery is an extremely important phase for the case and by not taking advantage of it, you have really hurt your case.’

Discovery typically begins shortly after an acknowledgment order is issued and finishes generally within 60-90 days of the case being docketed (depending on how complex the case is). If there are discovery disputes, parties can go to a judge and request that the judge issue an order requiring the party to produce the requested documentation. This typically is referred to as a motion to compel.  Generally, appellants will not have very much discoverable information in an MSPB disciplinary case since the agency is obligated to provide all the evidence to support the disciplinary action. Although, that’s not to say that sometimes appellants are not served with discovery requests. It’s just a question of whether or not the information the agency is requested is relevant or not.

Q: Shifting gears, what are the Douglas factors?

Well, you can look on our website and we have an extensive article discussing the Douglas Factors. But, in short, the Douglas Factors are 12 different factors that a deciding official must look to when they’re determining the appropriate level of discipline for a federal employee in a disciplinary case. These factors were created in a seminal decision by the Merit Systems Protection Board, where one of the parties’ names was Douglas, hence the name Douglas Factors. These factors include your length of service with the federal government, the severity of the misconduct and things like that. So, the purpose of these factors is to encourage these deciding officials to look at a case cohesively or review the totality of the circumstances and determine whether or not the proposed discipline is reasonable or not. Now, the Douglas Factors are also extremely relevant at the MSPB, because judges will also evaluate a case independently and make sure the deciding official properly applied the Douglas Factors. If a deciding official does not properly apply the Douglas Factors, that could be grounds to mitigate or overturn the disciplinary action.

Q: Is it hard to win a case at the MSPB?

It really depends on the case that you have personally and the individual merits of your case.

One of the big questions is, have you been subject to discipline before? If you’re someone who has been subject to three or four prior disciplinary actions and then finally now you’re faced with a 30 day suspension or removal, your case is probably going to be difficult to win at the MSPB.

Now if you’re a model employee, who has worked for the government for 25 years and your agency’s trying to fire you for taking a pen home, or showing up five minutes late to work one time, that is a strong case.

Again, it really depends on the merit of your case but in all candor, MSPB cases are challenging and more often than not, appellants lose at the MSPB. Now that’s a function of multiple things. One, it’s a function of highly educated and sophisticated federal management and advisory structure. Management can consult labor and employment relation specialists, and attorneys, who know all the rules for disciplining federal employees and they make sure to follow them. This structure is in place because a common way for disciplinary actions to be overturned, is if something is procedurally unsound. Why procedure is so important, relates back to the Constitution and federal employment being a property right and the need of the government to uphold the rule of law and the Constitution. Now, because there are all these experts on the agency side, typically these procedural issues do not arise. Additionally, smaller or less serious matters are typically resolved more informally within management structures. A good manager, instead of going straight to a 15 day suspension of an employee, will counsel them and work with them informally to try and change their behavior.

So, generally the cases that actually end up making it to the MSPB are cases where the conduct is fairly serious or misconduct is really egregious; Employees assaulting other employees at work or stealing valuable property or destroying property or failing to follow orders consistently. Generally it’s a pattern of behavior over and over and over that will lead to the most trouble for federal employees and greater likelihood of a sustained removal or a long suspension at the MSPB.

Q: How long does a hearing last at the MSPB?

Speaker 1: Well, typically you can expect it to take around 120 days or more. Realistically an expectation is about a little less than a year. It really depends on your case specifically, how complicated it is, if it’s a multi-day hearing and how long it takes the judge to issue a decision in your case. MSPB has a rule, generally, that tries to get a case decided within 120 days, as we discussed earlier. That is not a hard and fast rule to the extent that if the judge takes more than 120 days, an employee automatically wins his case . It simply doesn’t work like that, but you can expect around 180 to 220 days. I’d say is a fair estimation of start to finish, given that there will likely be one or two case suspensions in your case, where the case is suspended or deadlines are continued for 30 days and just to account for the judge dealing with scheduling issues and the time to write a well thought out opinion for your case.

Q: Can I appeal if I lose my MSPB hearing?

So let’s say you go through a hearing, the judge issues a decision and he sides with the agency and sustains your discipline. What sort of redress do you have? Well, again, it depends to specifics of your case, but typically you have a right to request reconsideration by the full board. The Full Board are the three members that are appointed by the president and these three board members, will review your case and see if there is anything deficient by the judge, or make a decision about new evidence that was unavailable previously and decide whether or not you’re entitled to a new hearing or something that was so plainly wrong or a law that was clearly misapplied then they may overturn the prior decision. Also, sometimes you can take your appeal to the federal circuit, and in cases where there’s a discrimination component, commonly referred to as a EEOC or Equal Employment Opportunity Commission component, you can appeal that to federal district court.

Hopefully you found this discussion with a MSPB Representative helpful. If you have more questions, feel free to contact us if you have a pending case you need help with or would like to suggest a new question for our next Q&A session.

Thank you.

 

How Hard is it to Fire a Federal Employee: Statistics from the MSPB

My practice focuses on the representation of federal employees, specifically, I help federal employees appeal adverse actions which include removals (terminations) and long suspensions (15-days or more). Most commonly, these cases are litigated before the Merit Systems Protection Board (MSPB). Formerly, I worked as federal agency counsel, where my job was to try and uphold the removals and adverse actions against federal employees before the MSPB. Now, as mentioned, I represent employees at the MSPB. Since I have perspective from both sides of the aisle, I have insight that many practitioners lack. This article will address two main topics: 1) Just how hard is it to fire a federal employee? and; 2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

Each case is obviously different so the chances of you prevailing will depend on the specific facts of your case. However, there are some common themes you can look at related to your case to give you a better idea of the chances of winning on appeal. I’ll address some of the more common facts that lead to removal and other facts that generally help shield employees from removal. I will also review some of the more recent statistics from the MSPB related to case processing to give you a general idea of just how often employees prevail when they challenge adverse actions.

Is it really impossible to fire a federal employee?

I hear it all the time “It’s impossible to fire a federal employee.” In my experience, having participated in discipline cases from both the agency’s and employee’s perspective I can say that this statement is not accurate. Firing a federal employee may be challenging, but it is not impossible.

Certainly, federal employees have more protection than most private-sector employees who generally serve “at-will” and can be fired with little or no notice. However, federal employees can be terminated, it just requires more diligence and effort by management. While the framework for firing a federal employee is certainly more restrictive than private sector employees, if management gets good advice and handles the case properly, it is not that difficult to fire a federal employee.

Background — It is all about (due) process

So why is firing a federal employee difficult? Well, it all goes back to the Constitution. In simple terms, the government cannot take any property or “property interest” from a citizen without due process of law.

For federal employee’s, their continued employment is considered a property interest and because of that, the government cannot summarily fire them. Instead, the Fifth Amendment of The Constitution requires they receive due process prior to their termination. In this context, that means notice and a hearing or other opportunity to challenge their termination. See, e.g, Block v. Hirsh, 256 U.S. 135, 159 (1921) (explaining that, “[t]he national government by the Fifth Amendment to the Constitution, and the states by the Fourteenth Amendment, are forbidden to deprive any person of ‘life, liberty, or property, without due process of law’”). This right was further explained in Cleveland Bd. of Ed. v. Loudermill, 470 US 532 (1985) and refined as it relates to a deciding official’s role in discipline cases and specific procedural requirements by both Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).

The takeaway is that: by virtue of your employer being a governmental institution you have more rights than your counterparts that are employed by private sector entities. Nonetheless, if you are federal employee you shouldn’t think this shields you from termination or is a blank-check to engage in bad behavior, as I stated above, firing a federal employee is not impossible.

For more information about the specifics of MSPB case processing read our in-depth article, where we cover the appeal process from start to finish.

Management’s knowledge and experience matter

Given that federal employees are entitled to certain protections that other employees are not, it is important that management is familiar with these rules and that they ensure they meet the minimum due process requirements when they initiate an adverse action against a federal employee. Failing to do so can lead to the discipline being reversed on procedural grounds even if the employee had engaged in the misconduct as alleged. This can be costly for the agency because they have to bring the employee back, give them back pay, and then re-initiate the discipline process. Ultimately, the framework management has to follow is not exceedingly complicated, and competent labor and employee relations staff and agency counsel should be able to guide management towards a Constitutionally sound disciplinary action.

Douglas Factors – The 12 things management must consider

I’ve written about the Douglas Factors at great length here. For the purposes of this article, the Douglas Factors are another important element to any adverse action and management must properly consider these factors when issuing a decision on a discipline case. A manager that fails to consider the Douglas Factors when issuing an adverse action does so at their own peril. The Douglas Factors are:

  1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
  2. the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
  3. the employee’s past disciplinary record;
  4. the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  5. the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
  6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  7. consistency of the penalty with any applicable agency table of penalties;
  8. the notoriety of the offense or its impact upon the reputation of the agency;
  9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  10. the potential for the employee’s rehabilitation;
  11. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter;
  12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Additionally, the Douglas Factors can provide a good indication of the strength of an adverse action early on. For example, if you have a long history of discipline, say you received a three day suspension two years prior, a ten-day suspension 18 months prior, a 30-day suspension 12 months prior and now you are facing removal, all things equal it is very likely that your removal will be sustained on appeal. This is because factor #3 and #10 and #12 strongly point towards sustaining the removal. However, if you have 25 years of federal service with a clean record and your employer proposes removal for your first offense, which is relatively minor in nature, you likely have a very strong case when applying the same Douglas Factors.

Ultimately, the likelihood of successfully challenging an adverse action is dependent on many factors. Generally it is best to consult with an attorney about the facts of your specific case, we offer free consultations with all potential clients.

Merit Systems Protection Board Statistics: What the numbers say about winning your case

Each year the MSPB releases statistics on the number of cases it processed, the types of cases, and the outcome of those various cases, including, whether they were dismissed for jurisdictional or other procedural reasons, or if a decision on the merits was issued. You can find the annual reports here.

What types of cases does the Merit Systems Protection Board handle

Looking at the pie charts below you can see the broad range of cases the MSPB handles on a yearly basis. You’ll note that on average the MSPB processes about 5,000 cases and nearly half of those cases are adverse actions. Adverse actions include removals, suspensions in excess of 14 days,reductions in grade or pay, and furloughs of 30 days or less.

2013 MSPB CASE STATISTICS:

MSPB 2013 Case Statistics

2014 MSPB CASE STATISTICS:

MSPB 2014 Case Statistics

In 2014, the actual number of MSPB cases processed was around 16,000 but this was due to a large number of appeals related to the government shutdown and the furlough of numerous federal workers. The 2014 numbers above reflect the statistics with furlough appeals removed.

Disposition of appeals, a simple overview

Below is the 2013 chart that lays out the disposition of all appeals by case type. These statistics are released in the fall for the preceding year, so the 2013 statistics are the most recent available. You’ll note that nearly 50% of the adverse actions filed were dismissed. Of the cases that made it past dismissal, nearly two thirds settled and the remaining were adjudicated on the merits.

2013 MSPB Adjudication Statistics

Getting in the door: Jurisdiction and Timeliness are killers at the MSPB

As mentioned above, nearly half of all adverse actions were dismissed in 2013. Why is that? Well, there are many jurisdictional and procedural hurdles to getting a case before the MSPB. Probably the most significant hurdle being timeliness. When an employee is served with an adverse action (decision letter) they generally only have 30 days to file their appeal. Being fired is an emotionally difficult process, and the 30 days can go by quickly. However, the MSPB is generally not very forgiving of appellant’s who file late–an untimely case is one less case the MSPB has to process. Therefore, generally, late filings are not looked upon favorably. Absent extraordinary circumstance, a late filing results in you losing your right to challenge the adverse action entirely. See, e.g.Dow v. Office of Personnel Management, 66 M.S.P.R. 21, 24-25 (1994).

This theory is consistent with the numbers below. You’ll note that in both 2012 and 2013 more initial appeals were dismissed, 60% and 62% respectively, than were actually accepted for adjudication. Turning to the merits of the cases, of the 5,881 filings in 2012, only 895 (15.2%) were decided on the merits. 2013 had similar figures, with decisions issued in only 919 of the 5,767 initial appeals (15.9%).

Turning to the ultimate decision in the case, we’ll assume that a ruling of “affirmed” was bad for the appellant (which may not always be true) and we will only count a decision of reversed, mitigated, or other as a victory. For 2012 that means of the 5,881 filings, 238 (4%) “won” their case. In 2013, of the 5,767, only 233 (4%) “won” their case.

2012 MSPB  initial appeal statistics
2012 Initial Appeal Statistics

 

2013 MSPB  initial appeal statistics
2013 MSPB Initial Appeal Statistics

These numbers can only tell us so much. What they do say is that most initial appeals are dismissed for some jurisdictional or procedural failure. My guess is that a large chunk of these cases are dismissed because they are not timely, or other administrative remedies were sought that barred MSPB jurisdiction. The numbers about appellant’s winning their cases are somewhat misleading, as you can see a large majority of appeals settle and since those case were settled by mutual agreement is reasonable to assume the resolution was desirable to the appellant.

Petitions For Review: Appeals of Appeals, numbers and results

Petitions for review (PFRs) are petitions to the full Board for reconsideration of a decision made by an administrative judge. As you can see, there are not that many petitions every year, and most are denied and not reopened. Interestingly, when a PFR is granted, it is more likely to result in a reversal than the prior decision being appealed. This, of course, is a function of the purpose of a PFR which allows review only when the initial decision contained “erroneous findings of material fact…erroneous interpretation of statute or regulation…involved an abuse of discretion…[or that] new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed.” See 5 C.F.R. 1201.115.

2012 MSPB statistics PFRs
2012 MSPB Petition For Review Statistics

 

2013 MSPB statistics PFRs
2013 MSPB Petition For Review Statistics

So few PFRs are granted likely because the parties requesting review don’t follow the mandates of 5 C.F.R. 1201.115 and seek review on other issues outside of the scope of the regulations, or trying to provide new evidence that was previously available.

What these numbers tell us – and what they don’t

If you’re a federal employee facing an adverse action, reading these statistics is probably fairly disheartening. It certainly looks like a long road ahead if you want to get a long suspension or a removal overturned. Certainly, that will be the case if the agency administered the adverse action properly and you engaged in the misconduct as charged. However, these statistics can only tell us so much. There are many other factors that can change the outcome of a case. Also, keep in mind that only about half of the cases reflected in these statistics are appeals from adverse actions, the remaining half make up a diverse group of other actions that are appealable to the MSPB. Another significant factor that can skew these numbers, is that many of the appellant’s that appear before the board do so by themselves, they are unrepresented, or in lawyer speak “pro se.” Litigating a case before the MSPB is difficult, there are pages of regulations you need to follow and missing deadlines can foreclose you from filing your case, getting discovery, or seeking review if the judge made an error in the initial decision. That is why it is helpful to hire someone who has experience litigating cases before the MSPB. That that does not just mean hiring any attorney. Unfortunately, I met quite a few potential clients who come to me only after a state-law-focused employment law attorney has done irreparable harm to their case. Federal employment law is a unique and distinct area and generally you should only hire federal employment lawyers to represent you before the Merit Systems Protection Board.

Conclusion

I hope this article was helpful and informative. Federal employment law is a very niche practice and there seems to be quite a bit of misunderstanding on this topic. If you are a federal employee facing an adverse action feel free to contact us for a free consultation.

Turning back to the introductory questions from this article:

1) Just how hard is it to fire a federal employee?

Firing a federal employee is not that difficult, making that termination stick is the harder part. It is important that if an agency wants to remove an employee from the federal service that they provide minimum due process to the employee in question and make sure that their practices are in keeping with new developments in the case-law surrounding federal employee terminations.

2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

It depends. Really, it does. The facts of every case are unique and how those facts fit in to the framework of the various laws will determine the outcome. In all honesty, the MSPB certainly is not the most favorable place for employees. But, many cases resolve through settlement and hiring an experienced federal attorney can help you get the best outcome possible.

 

Fast Legal Answers: Failure to maintain a condition of employment

For my fourth post in the Fast Legal Answers series, I will discuss a common federal disciplinary charge: failure to maintain a condition of employment. This charge is unique in that it typically results in removal of the federal employee. Indeed, this means removal can stem from something fairly benign such as losing computer or building access. Accordingly, some agencies may try to use the failure to maintain a condition of employment charge to remove a trouble employee that has not engaged in other, more substantive, misconduct.

What are conditions of employment?

Conditions of employment include professional certifications, such as bar membership for attorneys, a commercial driver’s license for positions where driving is a requirement, medical credentials for medical professionals, or the ability to carry a firearm for law enforcement officers. Essentially, a condition of employment is any license, qualification, training, or certification that is necessary to perform a specific job.

security clearance (S, TS, TS-SCI, etc.) for national security positions is special condition of employment. As discussed further below, firings related to loss of a security clearances are harder to challenge and have limited appeal rights.

Other, less commonly cited conditions of employment include access to computer systems and government buildings.

What is an example of a failure to maintain a condition of employment?

Attorney’s that work for federal agencies are required to maintain active bar membership in at least one state. Let us assume our example attorney, John Smith, fails to pay his bar membership fees and fails to complete his required continuing legal education courses. As a result, the state bar rescinds his membership. Shortly thereafter, Mr. Smith’s agency finds out that he is no longer licensed by a state bar to practice law. The employing agency then initiates removal proceedings for failure to maintain a condition of employment. Absent procedural errors or other substantive misconduct, Mr. Smith’s removal for failure to maintain a condition of employment would likely be sustained by the MSPB.

What can I do if I am removed for failure to maintain a condition of employment?

If you a removed for failing to maintain a condition of employment, in some cases you can challenge your removal before the MSPB. You can read more about the process an MSPB case takes in our MSPB legal guide. This entails filing an appeal of the adverse action and potentially attending a hearing where the agency presents the evidence against you and a judge makes a determination as to whether the agency has met its burden of proof. See Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007).  Note that the filing deadlines for an MSPB case are very short (30 days) and you should consult with an attorney as soon as you receive a notice of adverse action.

What rights do you have if you a fired because you lost a security clearance?

If you are removed from the federal service because you lost a security clearance, typically your rights are much more limited. That is because there are essentially two-tracks for reviewing adverse actions against government employees. Actions that are “for cause” are entitled to review, actions that are based on “national security concerns” such as the revocation of security clearance are not. The Supreme Court addressed this issue in Department Of Navy V. Egan, 484 U.S. 518 (1988), where it concluded the MSPB does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action.

Two track system illustrated:

Two track system, for cause firings vs. national security concerns federal adverse actions

 

Note that some agencies have special regulations related to removal of clearances and those administrative processes may control in your case. In all likelihood, however, you will not have the right to MSPB review of your removal. Instead, you will have to rely on whatever internal review has been established by your agency.

Conclusion

This is a complicated topic because there are many different ‘conditions of employment’ that can result in an adverse action if they are not maintained. Further, certain conditions of employment are treated differently than others with varying appeal rights. The most common example being security clearance determinations. It is important for employees to understand what, if any, conditions of employment exists related to their position and to be apprised of their rights and obligations related to those conditions. Finally, it is critical that if you are removed for failing to maintain a condition of employment that you contact and consult with an experienced federal employment law practitioner to get expert advice on this very unique area of law.

Merit Systems Protection Board MSPB Attorney California

The Ivancie Law Practice specializes in representing federal employees before the Merit Systems Protection Board (MSPB). We represent federal employees across the country, from California to Washington DC.

If you are a federal employee and have been served with a disciplinary action, or already have a case before the Merit Systems Protection Board MSPB you need to hire an experienced attorney to handle your case. The MSPB is a unique administrative body with different rules than other forums.

Practicing before the MSPB is different than practicing in state court. You cannot just hire any employment lawyer. If you do, you risk having a representative that isn’t familiar with all the special rules that govern cases at the MSPB. Moreover, the deadlines are short and missing them can spell disaster for your case. I’ve seen multiple clients that have received bad advice from state attorneys that were not familiar with the unique rules of the MSPB and public-sector employment law, make sure you choose a knowledgeable advocate for your MSPB case.

Hire an experienced MSPB attorney. Choose San Diego Attorney, Mike Ivancie to handle your Merit Systems Protection Board appeal.

What type of MSPB cases do you take?

  • All Adverse Actions
  • Suspensions in excess of 14 days
  • Removals
  • Reductions in pay or grade
  • Whistleblower appeals – Individual Right of Action IRA appeals
  • Suitability determinations
  • Performance-based removals
  • Probationary Employee Terminations (limited jurisdiction)
  • Mixed-case appeals including allegations of discrimination
  • If you don’t see your case type listed above, it doesn’t mean we don’t handle that type of case. Call us and we can discuss whether we can assist you with your case.

Your representative should have experience handling public sector employment law cases

Our law practice focuses on employment law, and specifically, public sector employment law. This means we have expertise related to special administrative bodies like the MPSB. We are familiar with the procedural rules that govern, and we know how to use those rules to the benefit of our clients. While the MSPB allows you to pick any representative you like, including non-attorneys, it is strongly recommended that you hire someone that is familiar with the rules and procedures of the MSPB. Read our founder’s biography.

Your Attorney should be knowledgeable about MSPB cases and regulations

We have experience representing both agencies and employees at the MSPB. We have real world experience from both sides of the bench. We have dealt with MSPB Administrative Judges and understand their dockets and their inclinations, and can leverage this knowledge to your advantage.

We demonstrate our knowledge of the MSPB and its rules with our extensive writing on the topic:

The Federal Employee’s Attorney

We care about our clients and we want to get them the best outcomes possible. The competitive advantage of The Ivancie Law Practice is that our founder, J. Mike Ivancie, Esq. formerly worked for a federal agency where he handled MSPB cases on behalf of the federal government. He knows how federal agencies approach these cases. He knows where they make common mistakes. He also knows the settlement value of cases and he will work to get you the best deal should settlement present itself.

If you are facing discipline, including a lengthy suspension or removal from the federal service you need to pick your advocate carefully. Having previously worked to sustain disciplinary actions against employees I know the process and I know how stressful it can be for employees. I will work with you to resolve your case quickly and favorably.

A Lawyer that can pay for himself

The Ivancie Law Practice can work with you to find a fee arrangement that fits your needs. In some cases, we even offer contingent fee agreements where we don’t get paid unless we win your case. Further, the MSPB allows for the award of attorney’s fees in the event that you prevail against the agency. If the Ivancie Law Practice helps you win your case and there is an attorney’s fee award, we will agree to refund you any up-front fee you paid us. Representation at no cost to you. We provide experience and value.

Call today for a free consultation with experienced Merit Systems Protection Board, MSPB Lawyer, J. Mike Ivancie, Esq.

CONTACT INFORMATION:

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What are the Douglas Factors?

(Updated 3/31/2015)

How you use the Douglas Factors can mean the world in your discipline case.

 

What every federal employee facing discipline should be familiar with: The Douglas Factors.

This article covers the Douglas Factors. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case.

This guide has been prepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees.

If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government.

If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging in when you apply the 12 Douglas Factors to the specific facts of a discipline case.

After reading this guide, if you want to read further on the topic of federal employee discipline, you may find our guide to MSPB and discipline cases helpful.

If you are a federal employee facing discipline, as you read this article you should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. A well presented reply to the proposed discipline can lead to substantial mitigation.

In short: if you’re facing removal leveraging the 12 Douglas Factors the right way could save your job.

The twelve keys to the outcome of your discipline case

The Douglas factors are probably the most important factor in determining the outcome of any federal employee’s discipline case.  Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline.  By contrast, the Douglas Factors are well known by managers because they have to reference and articulate how those factors interplay with the specifics of every disciplinary case they preside over.

Background – Source of The Douglas Factors

The Douglas factors come from a seminal employment case titled, Douglas v. Veterans Administration, 5 MSPR 280 (1981). In that case, the Merit Systems Protection Board laid out the twelve factors that need to be considered in any federal employee’s discipline case.  If you want you can download and read the full Douglas v. V.A. MSPB decision.

The Douglas Factors

The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employee’s discipline case are:

  1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
  2. the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
  3. the employee’s past disciplinary record;
  4. the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  5. the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
  6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  7. consistency of the penalty with any applicable agency table of penalties;
  8. the notoriety of the offense or its impact upon the reputation of the agency;
  9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  10. the potential for the employee’s rehabilitation;
  11. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
  12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Now, lets take a closer look at each factor individually.

Analysis and Explanation of each Douglas Factor

The nature and seriousness of the offense, relation to employee’s duties, and intent

The first factor looks at the severity of the misconduct and how it relates to the position the employee has.  For example, a law enforcement officer is charged with enforcing laws.  So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty.  Additionally, this factor looks at intent. Negligent or accidental incidents will be viewed more favorably than intentional acts.  Not only the first, this is also the most important Douglas Factor, as the MSPB has directly stated that “the most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated.” Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001).

Job level and type of employment

This factor looks to the status of the employee.  If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. If you are low level employee with no supervisory functions this factor should have some mitigating value. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. With responsibility comes greater obligation and scrutiny.

Past disciplinary record

This one is pretty self-explanatory.  If you have been disciplined before you will face harsher discipline going forward. The idea is that discipline is meant to be corrective and progressive. So, if you do not conform your conduct after being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline.  Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service.

Past work record

Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Also any awards or accolades the employee has would be mitigating in nature.  Additionally statements from managers or co-workers as to your ability and integrity will be helpful.

Ability to perform, and supervisory confidence

This factor deserves some detailed explanation since it is one of the less self-apparent of the factors. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? If you’re a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce laws–which cuts to the very core of your duties as a law enforcement officer.

Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts.  If that clerk is then caught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerk going forward.

Consistency of the penalty with other cases

Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case.  Lets say you missed a deadline for an important assignment and management has proposed removal.  But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand.  All other facts the same, you would want to point this inconsistency to management’s attention because it is clear the two penalties are not consistent with each other.

Consistency of the penalty with agency’s table of penalties and offenses

Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges.  You should review the table to make sure that your discipline is in keeping with this table.  If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management.

This table should be available to you as an employee.  Management has likely even required you to review the table and sign a form asserting your knowledge of it.  This is because it puts you on notice of the penalties which is factor #9, below.

Notoriety of the offense

The more notorious the offense you commit the more severe the discipline you will face.  So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty.

A good example of negative notoriety are the recent cases involving Secret Service Agents that hired escorts in South America. The national media picked the story up, and it was very detrimental to the agency.  Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service.

Notice to employee

This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind of conduct?  If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use of office supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. The more notice you have of the prohibition on certain conduct the stronger argument management has for issuing discipline if you engage in that misconduct.

Potential for rehabilitation

A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back?  To some extent, this is a subjective question. In some instances, however, an employee’s misconduct will be so severe its obvious they can’t be rehabilitated and brought back on the job.  This is a very fact specific factor and will depend on the manager’s opinion as much as the employee’s misconduct.

One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined?

Mitigating circumstances

This factor lends itself most to employees arguing for leniency in their case. Any personal issues going on around the time of the misconduct should be brought to the attention of management. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Ultimately, managers are people too. They likely held the same job you hold at some point in the past. They know the stress of a career, they know how life can be difficult. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause.

Adequacy and effectiveness of alternative sanctions

This factor is generally an afterthought for both management and employees. However, if you properly argue this factor it can go a long way towards helping your case. Let me give you an example. Lets say you are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. If you present evidence to management that you are enrolled in AA and also let management know you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. You won’t know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside.

Applying the Douglas Factors to your case

Reviewing these twelve factors in a vacuum is not useful to you as an employee, or to managers who are trying to make a decision about a specific disciplinary case.  That is why its important to use these factors to analyze the facts of each individual case–where the rubber hits the road. For the employee, how you articulate and present the facts of your case greatly affect how management applies the Douglas Factors.

Mitigating vs. Aggravating

These terms are used commonly in Douglas Factors application. A mitigating factor is one that suggests the discipline be mitigated, or lowered.  An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4.

Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year.

So how do I use these factors?

Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another.  For example, if an employee has no past disciplinary record, factor #3 doesn’t hurt the employee, and can actually become a mitigating factor.  In contrast, an employee with multiple prior cases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Each Douglas Factor can work for or against an employee depending on their specific case.

You need to look at the specifics of your case in light of the twelve factors. Go through each Douglas Factor and try to write down points that are in your favor and points that are not in your favor for each one. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctor’s notes, proof of counseling sessions, etc. Employees should be aware that managers sometimes use a ‘Douglas Factors Checklist‘ that helps then analyze and consider each factor. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly.

It is important that you really highlight the factors that are in your favor. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amount discipline you will receive.

What if I do not agree with management’s analysis of a specific Douglas Factor?

Sometimes management may misapply factors, or misconstrue them. Your job as an employee is to support your position as best as you possibly can. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Other times it may mean providing some evidence to management to further support your position. Regardless, try to avoid getting into an argument with management over factors.  Remain calm, deferential and respectful at all times.

Document, document, document – provide credible evidence, let it speak for itself

This means you should provide objective facts to support your arguments if you can. For example, lets say you are arguing that there are mitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same.

Ultimately, the more credible evidence you can provide to support your position the better. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. to write letters for you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation.

Handling bad facts, applying them to Douglas Factors

In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee.

How do you handle these aggravating factors?

The key is credibility. Do not deny the existence of bad facts. But do not highlight them either. Be clear, terse, and apologetic. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will for an employee who tries to deny misconduct and appears dishonest or unapologetic. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character.

Can someone help me present the Douglas Factors to management?

If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative.

Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later

Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. A competent attorney can help you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. For example, an attorney won’t have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. Spending the money upfront on representation at your oral-reply, could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board.

An overlooked fact about the cost of hiring an attorney is that they can actually save you money. If you’re facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay.  In some instances the money they saved you may be less than their fee for taking your case–a great result for you the employee.

What if I already had an oral reply and they’ve issued a decision and misapplied the Douglas Factors?

In some instances, you may want to request that management reconsider your case. But they may refuse to. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB).  At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. The result will turn on the specifics of your case and the procedural posture as well.

Additional Questions?

How the factors will be applied in your disciplinary case depends on the specifics of your case. Our consultations are always free and confidential. Feel free to call or email The Ivancie Law Practice for a free consultation about your federal employment law issues.