WHAT IS AN AGGRAVATING FACTOR?

Looks like we Feds are going to be dealing with a lot more adverse actions soon if Trump’s Department of Efficiency has its way. Given that MSPB just issued a new precedent setting adverse action decision this is  a great time to begin brushing up on defenses that unions can raise to help employees. And that brings us to the concept of “aggravating factors.” 

Eric Bryant, a VA police officer, was fired, appealed, and convinced the Federal Circuit court and MSPB to send his case back to the agency to apply the proper standards. Unfortunately, if all they order is a reconsideration of the decision to terminate, the employee does not get reinstated while the agency ponders.

When the VA did issue a new decision firing him again, its decision letter included an analysis of the Douglas factors supporting the penalty of removal. Eric appealed again arguing that the agency reissued the decision without giving him an opportunity to respond beforehand. He claimed that was a violation of his right to “due process,” the essential requirements of which are “prior notice of the charges against the employee and a meaningful opportunity to respond to those charges.”

Follow closely here. Once he raised due process, MSPB wrote that, “An employee’s due process right to notice extends to both ex parte information provided to a deciding official and information personally known to the deciding official if the information was considered in reaching the decision and was not previously disclosed to the appellant.” In Eric’s case, the agency’s Douglas Factor worksheet showed that it considered several facts that were not in the original termination notice. MSPB calls these aggravating factors and wrote,

“…when an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official.”

In a more fair world, that alone should have resulted in Eric being returned to his job. But we do not live in that world because even after properly raising the issues of “due process,” “ex parte communication,” and “aggravating factors” all MSPB is willing to admit is that “If an employee has not been given notice of an aggravating factor supporting an enhanced penalty, a constitutional due process violation may have occurred.” So, on we go establiishing this defense.

When the MSPB and the Federal Circuit dig into the question of an aggravating Douglas factor not included in the original notice letter it examines –

(1) whether the ex parte information introduced cumulative, as opposed to new, information;

(2) whether the employee knew of the information and had an opportunity to respond; and

(3) whether the communication was “of the type likely to result in undue pressure on the deciding official to rule in a particular manner.”

The ultimate inquiry “is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.”

Looking at the first of the three elements, the Board found that the original proposal notice discussed that the appellant’s 5 years of service, the nature and seriousness of the offense, the appellant’s position as a police officer, and agency officials’ loss of confidence in his ability to perform the duties of his position all played a role in the ultimate penalty determination. However, it failed to include other items listed on its Douglas factor worksheet. For example, in the new removal decision, the deciding official explained that he considered that the appellant’s actions could “potentially invite conflict” between the agency’s police and the local municipal police due to the critical role played by local police and the necessary interaction between the two police departments.

This examination of the facts can be very precise, bordering on hair-splitting.  For example the Board wrote—

Although the proposal notice discussed that local officers feared for their safety as a result of the appellant’s comments while they were serving the protective order and they were subsequently “purposefully kept away from” the clinic to which the appellant was assigned, this discussion was limited to the appellant’s interactions with specific local officers, while the deciding official’s statements relate to potential future conflict between the agency’s police department and the local department as a whole. We find the deciding official’s consideration of a potential future and broader conflict to be new information and not cumulative of the discussion in the proposal notice.

It also dinged the agency for relying on the agency’s Table of Penalties without that also being mentioned in the original 2020 notice letter.

Then, in our favorite excerpt from the case the Board wrote,

Although the appellant was aware of the Douglas factors as a means of analyzing the appropriate penalty for an act of misconduct, he did not know which factors the deciding official would rely on in determining the penalty. The Douglas factors analysis that the appellant provided with his response to the earlier proposed removal was thus made in a vacuum.  The agency did not provide the appellant with a Douglas factors analysis until over 2 years later, after the administrative judge’s remand to the agency.

In my experience, very few employees “know which factors the deciding official would rely on in determining the penalty.” So, union reps have to go after any Douglas Factor worksheets or similar documentation in the file and scour them for unannounced aggravating factors.  If the case goes to a hearing, the unions must demand the Deciding Official explain in detail how they analyzed each Douglas factor. If the case goes to EEO, make sure the investigator demands a detailed statement from the Deciding Official doing the same.

Eric got his job back retroactive to 2020 with back pay and benefits.

If you want to read this case for yourself, you can find it at  Eric Terrell Bryant v. Department of Veterans Affairs. 2024 MSPB 16 (November 18, 2024).