The US Merit Systems Protection Board (MSPB) and the Federal human resources (HR) community now have less than a year from a 30th anniversary that might pass without notice.
For three decades human resource specialists, union officials, agency managers, legal counselors, labor arbitrators, Presiding Officials and Administrative Judges have been working with the 12 “factors” that were first articulated in the Board decision entitled Curtis Douglas, et.al. v Veterans Administration, et. al.
As time goes by
Much has changed in government in government since that time. The VA is now the DVA and many presidential appointees have succeeded the original three MSPB members (appointed by Jimmy Carter) who authored Douglas. These days, union contracts and agency discipline regulations routinely incorporate the “Douglas Factors” into their guidance on how to fashion an appropriate disciplinary penalty.
There has also been a generational change among human resources (HR) (formerly known as “personnel”) specialists in the areas of labor and employee relations (L&ER). The original Douglas decision and the Board’s motivation in devising it were greeted with suspicion by me and most of my L&ER colleagues. Today, use of the now-familiar 12 factors has become rather standard fare and all but the least-trained HR people know of the Douglas factors. Supervisors and managers in many agencies routinely complete written responses to each factor prior to taking any documented corrective action.
Despite many years of complaining about the Douglas Factors and the MSPB’s interpretations of their own precedent-setting decision, my opinion has changed almost 180 degrees. In retrospect, Douglas was a brilliant decision. It provided a sensible and rational framework for making judgments that otherwise would reflect more passion than thought. It also allowed a simple scheme for proving a penalty reasonable.
After lengthy sections in which the still-very-new-MSPB reasons and confers upon itself the power to review and modify penalty decisions, the factors are laid out as follows:
Court decisions and OPM and Civil Service Commission issuances have recognized a number of factors that are relevant for consideration in determining the appropriateness of a penalty. Without purporting to be exhaustive, those generally recognized as relevant include the following:
- 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;
- the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
- the employee’s past disciplinary record;
- the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
- 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 ability to perform assigned duties;
- consistency of the penalty with those imposed upon other employees for the same or similar offenses;
- consistency of the penalty with any applicable agency table of penalties;
- the notoriety of the offense or its impact upon the reputation of the agency;
- 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;
- potential for the employee’s rehabilitation;
- 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
- the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Douglas isn’t our problem
The Douglas factors were designed in the context of removal. The cases of seven fired employees (from VA, Air Force, Army, and Navy) were joined into that single full-Board decision. All of these appellants were contending that, even if guilty of breaking agency or workplace rules, the penalty of removal was excessive. Such arguments (in cases involving removals and reprimands) continue. We can and should expect them in any disciplinary setting.
Mr. Douglas and four others lost their cases – failing to prove the penalty of removal as excessive when the 12 criteria were applied to their cases. In one of the remaining two cases, the Board mitigated the removal sanction to a 30-day suspension and the remaining case was remanded for additional case development.
I count myself among those who believe that Federal agencies take too long to fire employees who repeatedly misbehave. Second chances often lead to third, fourth, fifth, and more opportunities to “get with the plan”. The fault for that (and such inane practices as expunging “Letters of Reprimand”) lies more with overly cautious/forgiving managers and HR specialists than with the Douglas Factors.
If many of the agencies with which I have worked and/or contracted were more assertive, I believe the flexibilities inherent in Douglas would support them. Remember, five of the seven appellants in this case lost. When last I looked at data, the Board sustains management’s disciplinary conclusions (including the choice of penalty) in more than 4 of every 5 cases they review on appeal. If we have met the enemy, “them” must be “us”.
Well considered and well crafted
There are some factors more likely to sway a judge than others. Factor 6, penalties given for similar offenses, is one that is very likely to be raised by the parties and/or analyzed by the judge/arbitrator. In the world of discipline, arguments relating to “disparate” and/or “excessive” penalties seem inevitable.
By contrast, notoriety (factor number 8 in the original decision) is seldom raised or evaluated in disciplinary proceedings. Nevertheless, the MSPB was wise to include it. When Federal employee misbehavior comes to the public’s attention, their agency’s reputation may be affected. Allowing notorious offenses the additional scrutiny of their own Douglas factor means that two individuals disciplined for the same transgression may be subjected to disparate penalties if the public is aware of one case but not the other. While this may offend our sense of fairness, it wisely acknowledges a fundamental reality of public employment.
Reaching an appropriate penalty
That’s the way it is with the 12 factors. They not only make good sense for the most part but, after three decades, they seem to be comprehensive. They have been consulted and rationalized thousands of times over the years and seldom fall short in giving a complete picture. Once a supervisor or manager has looked at each factor (some weighing in the employee’s favor – some not) the appropriate penalty emerges.
It’s not as if analyzing the Douglas factors leads one to a 10-day (rather than a 9 or 11-day) suspension. Rather, the exercise inevitably leads managers and their HR advisors to a rather narrow set of disciplinary options. HR specialists have often concluded a Douglas factor review with a manager by saying something like, “It looks like you’re somewhere between and 10 and 14-day suspension.”
From there, management selects the punishment that seems most appropriate and uses its responses to the 12 factors when called upon to explain that penalty. In a hearing, a manager is likely to be given the Douglas factors by her/his representative and asked to explain the picture that developing upon considering each one. When such testimony is honestly and thoughtfully given, it commonly proves convincing.
Regarding the discretion this factor-by-factor analysis, the Board wrote:
The Board’s role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first instance; such an approach would fail to accord proper deference to the agency’s primary discretion in managing its workforce. Rather, the Board’s review of an agency imposed penalty is essentially to assure that the agency did conscientiously consider the relevant factors and did strike a responsible balance within tolerable limits of reasonableness
Of, by, and for the lawyers
Only an attorney could have come up with that phrase, “…within tolerable limits of reasonableness”! Who has ever used the word “reasonableness” anyway? The Douglas decision is full of such phrases. Its legalisms weren’t altogether unfamiliar to labor and employee relations specialists of that time, however, it was clear that the Board was making our Federal administrative systems more legalistic. Non-attorney representatives like me were going to have to learn new manners and language if we wanted to win our cases.
These days, most of those who represent clients before the MSPB are attorneys. Early decisions like Douglas were hinting in that direction. “Lawyer wannabes” still practice before the Board, but are trained to know legal terms like voir dire and status quo ante. We are learning to dispense with common workplace terms like “insubordination” and “theft” in favor of “failure to follow instructions” and “unauthorized possession”.
More to come
Over the many years since the Board crafted and issued Douglas I haven’t heard anyone argue for a 13th factor. Douglas has proven comprehensive. The 30-year mark may, however, prove a good time to look at a couple of the factors more critically. While little is left out of the penalty picture when considering the 12 factors, two of them are not particularly relevant and could be reconsidered in light of the 21st century. I intend to address those factors in a second article. Stay tuned.