Helpful Merit Systems Protection Board Case Resources and Links

This list contains helpful resources for individuals who have cases before the Merit Systems Protection Board (MSPB) or for practitioners and representatives who are appear before the board. Explanations are included below the link when necessary.

I regularly add new links and resources to this guide. If you have suggestions feel free to email suggestions.

**Last Updated 1/7/2015**

San Diego Employment Attorney, Contingent Fee FAQs

Update as of February 2, 2017, The Ivancie Law Practice is no longer taking any new contingent fee federal discrimination cases. We apologize for any inconvenience. 

Do you have an employment case, but no money to fight it?

Then hiring an attorney on a contingent fee basis is probably the best option for you.

Contingent fee agreements are used in many types of employment law cases. Especially, cases where the underlying law allows for attorney’s fees or where the claimant (you) is likely to get a monetary judgment (award) against the other party. These types of cases include discrimination cases, Whistelblower cases, pay and leave cases, and some discipline and wrongful termination cases. You can read more about those types of cases at our Employment Law Guides section.

My practice takes contingent fee cases. If you are interested in learning more about this type of fee arrangement continue reading.

Below are some common questions and answers related to contingent fees in employment cases.

Employment Law Case, Contingent Fee Agreement FAQs

What is a contingent fee?

A contingent fee means that the attorney handling your case doesn’t charge you anything for the time they  spent working on your case, unless you win. Their pay is contingent on you winning. Typically, if they do win your case they get between 20%-40% of the total recovery.

What if I lose my case?

Typically, if you lose you do not owe the attorney anything for the time the attorney spent working on your case. Attorney’s, however, cannot promise to pay the costs of your case for you (filing fees, expert witness fees, etc.). See Cal. Rules of Prof. Conduct 4-210. So in some instances, you may have to pay the costs associated with fighting your case. Make sure you discuss this arrangement with your attorney when you enter into a contract with them to avoid being surprised later.

What if I win my case?

Congratulations! You likely signed a fee agreement with the attorney and it will control how any award is disbursed. For example, lets say you entered into a contingent fee agreement with an attorney where the attorney would keep 33% of any recovery you got and the judge awarded you $30,000 in your discrimination case. The attorney would be entitled to $10,000 (1/3) and you would keep the remaining $20,000 (2/3).

How can costs affect my award in a contingent fee case?

This is a very important, and often overlooked, issue. Costs can add up in any case. It is important that you agree beforehand with your attorney regarding how costs will be paid for if you win your case. The reason this is so important will become very clear with the two illustrations below.

Lets say you win your case and get an award of $30,000. You and your attorney agreed he/she would get a third (33%) of any award. Let’s also assume there were $5,000 in costs. Great. So you’re thinking you are entitled to $20,000, right? Well, it may depend on when costs are taken out.

If costs are taken out before the contingent fee:

The split will look something like this: $30,000 (award) – $5,000 (costs) = $25,000. In that case $25,000, not $30,00 will then be split 66% for you 33% for the attorney.

Then the attorney gets: $8,333.33 (1/3 of $25,000)

You get: $16,666.66 (2/3 of 25,000)

If the fee is taken out first then costs are taken out:

Now lets say the agreement stipulates that the attorney gets his/her 33% first then costs are taken out with you getting the rest. In that scenario:

The attorney would get $10,000, a third of $30,000.

You would get $15,000. ($20,000 remaining minus $5,000 in costs).

See how there is a fairly significant difference between the two recoveries?

It is important you agree beforehand how costs will be taken out because as costs increase, it can greatly affect the amount of money each party ends up actually receiving.

What is a reasonable contingent fee?

Unfortunately, the answer is: it depends. An honest attorney will look at a number of factors when they determine whether to take your case, and the fee to charge. Some of those factors include: the amount of time your case will take to prosecute, the complexity of your case, the strength of your case, the likelihood of winning, and the prevailing rates in local legal community.

To illustrate, if you have a very complicated case with significant factual issues and legal hurdles that will require a great deal of briefing and effort by the attorney, the contingent fee percentage is likely to be higher. Moreover, if you are in a high cost-of-living-area like San Diego you are likely to be charged more.

We won my case, but now I think I paid too much, what can I do?

Generally, you are bound by the terms you entered into when you signed the original fee agreement. The main exception would be if the fee paid was grossly disproportionate to the amount of work done by the attorney. The ethics rules for attorneys require that the fees they charge not be unconscionable. See Cal. Rules of Prof. Conduct 4-200 What is unconscionable is determined on a case by case basis. But if your attorney only worked on your case for 5 hours and got a settlement for $500,000 and is trying to take a third–that would be unconscionable. The hourly rate equivalent would be around $33,000/hour which is beyond absurd.

If your case resolves quickly for a high recovery your attorney should be open to reducing their contingent fee percentage so the fee is not unconscionable. Just ask, and point them to the ethics rule cited above.

What about cases where you can get attorney’s fees awarded?

So, some statutes allow for the recovery of attorney’s fees if the claimant (you) is victorious in their case. For example, the federal Whistleblower Protection Act, provides for the award of both reasonable attorney’s fees and costs if you win your case before the Merit Systems Protection Board. See 5 U.S.C. 1221(g)(2).

What this means is that your attorney can attempt to recover their actual time (hours expended) at their hourly rate. So, for example, if they spent 100 hours on your case and their typical hourly rate is $400 they will seek $40,000 in attorney’s fees.

Can I (the client) keep some or all of the awarded attorney’s fees?

Typically, no. If a statute allows for attorney’s fees, any fee agreement you enter into will likely stipulate that the attorney’s fee award will go to the attorney. Moreover, there are ethical rules that prevent attorney’s from sharing legal fees with non-attorneys. See Cal. Rules of Prof. Conduct 1-320. As to the disbursement of other awards along with attorney’s fees, that is up to you and your attorney. Since contingent fee cases are risky and could easily result in no payment for the attorney, in some instances, the attorney may require that they get part of any recovery you get along with attorney’s fees to compensate them for the risk in expending all that time on your case.

Why won’t an attorney take my case on contingent fee?

If you have visited multiple attorneys and they have all declined to take your case on a pure contingent fee basis, it may be because you do not have a strong case, or that the statute under which you have a cause of action limits your potential recovery. Or, it could be for a host of other factors.

A simple illustration of the financial calculus that goes on when evaluating a contingent fee case is as follows. If an attorney knows the most you can recover is capped at $10,000 and they will easily spend $20,000 of their time on a case–that’s a losing proposition for them and you, so they won’t take your case. Again, there are many factors that go into the decision of whether or not to represent an individual, some of which have nothing to do with you, or your case, such as their current workload or familiarity with the specific area of law your case relates to.

What is a hybrid fee arrangement?

A subject that warrants an article all its own, hybrid fee arrangements are fees where the attorney and client agree to both a contingent fee and some other fee such as a flat rate or fixed fee. One potential arrangement is where a client agrees to pay the attorney a flat fee for taking their case, but in an amount much smaller than the attorney would get if they billed the case hourly. In return, the client also agrees the attorney will get a percentage of any recovery should they win the case. This arrangement can be very beneficial to both parties because it assures the attorney they will get minimal compensation for their work while still providing an incentive to win the client’s case. It is beneficial to the client because that upfront flat fee may get an attorney to take their case when they wouldn’t have if the case was purely based on a contingent fee. I have moved to using hybrid fees fairly often. I find these types of agreements can be negotiated to a point where they benefit both parties.

Wrapping up: Five things to remember about fee agreements

  1. Fees are negotiable, discuss and work out the details.
  2. Think about the possible scenarios that could occur, even the remote ones, when you are negotiating a fee agreement.
  3. People respond to incentives, contingent fees align the parties’ interests. Aligned interests are a good thing.
  4. Paying a big contingent fee to your attorney is actually a good thing, it means you won a big award and your attorney did a good job.
  5. Contingent fees help people get representation when the otherwise wouldn’t. Just because you do not have money, doesn’t make it legal to discriminate against you, wrongly terminate you, or deny you a reasonable accommodation.

I hope you found this information about employment-law fee agreements helpful.

 

California Government Code Section 12965, parsed and explained

California Government Code Section 12965 is a commonly referenced statute that provides many of the deadlines and procedural rules for filing a case in California whether it was initiated and/or processed through the Equal Employment Opportunity Commission (EEOC) or the California Fair Employment and Housing Act (FEHA).

Below, I will go through subsections (a) through (e). The original text of the law will be reproduced in this format:

Text of California Government Code Section 12965 looks like this.

And my comments will appear like this text without any special formatting.

If you like, use the following table of contents to navigate to any specific subsection you have questions about.

California Government Code Section 12965

12965(a)

Part (a), provides that if an alleged discrimination case fails to settle through mediation or other alternative dispute resolution (ADR), the claimant may bring a civil action. A prerequisite to filing a civil action (court case) is that the parties engage in a free dispute resolution process.

If the claimant chooses to initiate a civil action, after going through the necessary procedures, they must file in any California county where the discrimination took place, where records related to those acts are, or where the claimant would have worked or had access to public accommodation had they not otherwise been the subject of unlawful acts. If the defendant is not located in any of these locations, an unlikely scenario, the case may be filed in a county where the defendant resides or has its principle office.

Class complaints, and those based on a violation of Section 51.7 of the Civil Code are subject to special rules and a claim in civil court must be filed two years after filing a complaint.

All other complaints must be filed in civil court one year from filing. Failure to do so could prevent the claimant from seeking redress entirely.

In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in his or her discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the department’s internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by his or her own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendant’s residence or principal office. For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.

12965(b)

Section (b) governs when individuals have the right to file a complaint. In these cases, the FEHA has the initial option of filing a civil action. If those agencies choose not to file a civil action on the complainant’s behalf then they must do so on their own, if they wish to proceed.

If the FEHA decides not to file a civil action on the complainants behalf, or if more than 150 days elapse after the initial filing of a complaint, upon the complainant’s request they will be given a right-to-sue-notice.

The right-to-sue-notice (right to sue notice) is a very important document which outlines the procedural stance of your case and notifies your rights. The notice typically will provide that the complainant has one year to initiate a civil suit from the date they receive that notice.

If the complainant never requests a right-to-sue notice the FEHA will issue a right-to-sue-notice after its investigation is complete not later than one year after the filing of the original complaint.

This section also includes special rules for the filing of actions based on violations of law related to HIV/AIDS discrimination.

Additionally, civil cases brought under these laws may result in the award of reasonable attorney’s fees and costs, including expert witness fees.

If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.

12965(c)

Section (c) relates to the relief parties can receive if they win their case. Relief is a fancy word for what the court can order the losing party to do. In this case the court can award damages, but also may require that the employer provide additional discrimination focused training to its managers and employees going forward.

Additionally, this section provides that if the civil complaint properly requests it, and the complainant’s claim meets the requirements of Section 51.7 of the Civil Code, then they may also be awarded up to $25,000 civil penalty to be paid by the defendant.

A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employer’s internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.

12965(d)

Section (d) relates to the tolling (extending) of the statute of limitations in certain situations. Specifically, when the charge of discrimination is filed with both the EEOC and FEHA and the investigation is deferred by the FEHA to the EEOC and the right-to-sue is issued upon that deferral. The tolling lasts until the federal right-to-sue period expires or one year from the date of the right-to-sue notice issued by the FEHA, whichever is later.

(1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later. (3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.

12965(e)

Similar to section (d), above, section (e) relates to the tolling (extending) of the statute of limitations in certain situations. Specifically, when the charge of discrimination is filed with both the EEOC and FEHA and the investigation is deferred by the EEOC to the FEHA and after the investigation by the Department of the FEHA, the EEOC agrees to perform a review of that determination, or conducts its own independent investigation.

The tolling, in this case, lasts until the federal right-to-sue period expires or one year from the date of the right-to-sue notice issued by the FEHA, whichever is later.

(1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.

(C) After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

 

Conclusion

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

What is a protected class?

Below is a chart that lays out the commonly recognized EEOC protected classes in discrimination law. You cannot have a discrimination case without a protected class. This chart can help you understand this crucial element of a discrimination case.

If you would like to learn more about discrimination law read our EEOC and Discrimination Law Guide.

Legally recognized protected classes

 

 

What are the Douglas Factors?

(Updated 10/28/17)

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.

If you are looking for a representative, note that we are not taking on any cases at this time.

When looking for an attorney make sure they have experience handling federal-sector employment cases. Private sector cases are drastically different.