suspensions

Q & A with a Merit Systems Protection Board Representative

Mike Ivancie, Esq.

Q & A with a MSPB Representative

Today we’re going to be doing a question and answer session with a former Merit Systems Protection Board, MSPB representative.

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.

 

Related posts:

What are the Douglas Factors?

Mike Ivancie, Esq.

(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.

Related posts:

Curtis Douglas vs. Veterans Administration Full Decision

Mike Ivancie, Esq.

Click below to download the full Douglas decision in pdf format.

Douglas Decision

 

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