WASHINGTON, D.C. (Law.com) — A new set of rules for evaluating discipline against federal employees could give more deference to agencies that opt to terminate employees.
And the change is causing anxiety for federal employees and the attorneys representing them.
A lawsuit challenging the rule change seems likely, said Aaron Szot, an attorney at Kalijarvi, Chuzi, Newman & Fitch in Washington, D.C., who represents federal employees before the Merit Systems Protection Board, or MSPB.
The MSPB is retiring its longstanding list of 12 criteria, known as the Douglas Factors, that are used to adjudicate appeals to terminations and other employee discipline.
The change was made jointly by the Office of Personnel Management, or OPM, and the MSPB.
Starting Oct. 5, the MSPB’s administrative law judges will evaluate whether penalties fall within the “tolerable limits of reasonableness” based on the circumstances of each case, according to the Federal Register.
The old standard calls on the administrative law judges who hear MSPB appeals to conduct an evaluation that considers factors such as the nature and seriousness of the offense, the employee’s past disciplinary record, effect of the offense on job performance, and notoriety of the offense. The newly adopted rule calls on those judges to consider the totality of the circumstances.
When the MSPB first proposed the change, it wrote in the Federal Register that it was seeking “to refocus its penalty review on a totality of the circumstances test rather than a rigid application of prescribed factors. The proposed rule also promotes transparency regarding employee poor performance and misconduct by restricting agencies’ ability to engage in settlement agreements that remove official documentation of performance or conduct detrimental to the efficiency of the service.”
The Douglas factors came from a 1981 MSPB case, Douglas v. Veterans Administration. The case involved five federal employees who were terminated for job-related misconduct. The MSPB said the agencies employing the five workers had the burden of proof that the punishment fit the circumstances. Outlining its list of 12 factors, the board upheld the terminations of five of the seven employees.
But writing in the Federal Register in July, the MSPB said that “while Douglas intended flexibility, the evolution of practice has led to rigidity, formalism, and a risk of misplacing emphasis on a checklist of factors rather than the reasonableness inquiry. The board concludes that a return to a simpler, more flexible, statute-focused inquiry is required to remain faithful to Congress’s directives.”
The 12 Douglas factors have not been struck down, and are still available to agencies, judges and attorneys, said Szot. But each case need not go through an analysis of the factors in every case, and a failure to apply them is not grounds for overturning an agency decision, Szot said. The totality of the circumstances was a central standard before, as it will continue to be, Szot said.
“OPM and the board, with this new rule, are saying we don’t want the Douglas factors applied in such a rigid fashion that we’re actually not advancing merit systems principles. We don’t want technical failures when the agency’s decision is otherwise sound,” Szot said.
De-emphasizing the Douglas Factors could give agency managers more discretion, and lead to inconsistent decisions, Szot said.
“There has been a lot of pushback because there’s a lot of concern that it will lead to inconsistent penalties, or employees won’t be able to defend themselves—due process concerns, because we don’t necessarily know how these analyzes will be carried out,” she said.
“There’s certainly an argument to be made that that this is going to make it easier for agencies to remove employees,” Szot said. “But it doesn’t necessarily strip the analysis completely because we still have a totality of the circumstances. It still needs to be reasonable under the circumstances. What that means, we shall see.”
Those 12 factors added consistency to judges’ evaluation of employment penalties, said Michael C. Fallings, managing partner and chair of the Federal Labor & Employment Practice Group at Tully Rinckey in Washington.
It’s a big change because they’ve been using these factors for for a long time, and these factors are very helpful. It’s also a big change because then it creates more discretion, not only within the MSPB judges, but also the agency officials when making the determinations on the discipline. It makes it more subjective rather than objective. It creates more vagueness in why somebody is being penalized when they are being penalized,” Fallings said.
The change will likely make inconsistent decisions based on similar fact patterns, Fallings said—for example, you may see one agency decide to fire somebody that’s been late to work five timesin a row, while another agency might decide to only reprimand them, he said.
