MSPB CHANGES SIXTH DOUGLAS FACTOR MEANING
If a union rep cannot undermine the agency’s evidence that the employee committed the alleged infraction, then s/he uses the “Douglas Factors” to argue that even though guilty the employee’s penalty should be mitigated or reduced. MSPB just made it harder to use them successfully. Here’s what the Board did and how unions can adjust.
The sixth Douglas Factor requires an agency about to take adverse action to consider the “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Since 2010 the MSPB has interpreted that to mean that even if there is only broad similarity in misconduct between the charged employee and co-workers s/he is noting who received lesser penalties that sufficient to shift the burden to the agency to explain the difference in treatment. Additionally, it held that the universe for potential comparators was seemingly limitless.
For example, the Board overturned agency penalties where another employee committed a different offense than the accused, but the Board felt they were equally serious. However, in a new case entitled Harinder Singh v. USPS, 2022 MSPB 15 (2022) the MSPB has overruled that precedent and imposed a more restrictive interpretation of that Douglas factor.
Now it will not allow Board judges or arbitrators to compare offenses based on their seriousness, no matter how different their nature, e.g., comparing a falsification charge to a misuse of federal vehicle charge. Going forward the charges must be closely similar.
On top of that, the Board reemphasized that even where a judge or arbitrator finds a coworker was charged with a closely similar or even identical offense, but received a lighter penalty, “mitigation is by no means required in all such cases.”
Although it is a classic example of ambiguity, the Board wrapped up its analysis stating that as regards this Douglas factor, “the relevant inquiry is whether an agency knowingly and unjustifiably treated employees differently.”
Perhaps the only good news for the employees was the Board’s continued agreement that employees are not limited to identifying a co-worker in the same work unit and under the same supervisor. In Harinder the Board blessed the idea that the comparator could be anywhere in the same two-state region as the accused employee.
Here is what this decision means for unions.
1 – If you have an appeal pending before an arbitrator or judge and based your Douglas Factor argument on a broad similarity between the accused and a co-worker, then you had better think about asking to reopen the record to focus your evidence. Otherwise, even an arbitration victory could be overturned in court, leaving you to argue that the prior MSPB interpretation should still apply.
2 – You should find a way to regularly get information from the agency about any disciplinary actions in the agency. The easiest way would be to ask in negotiations for a monthly updated spreadsheet showing about a dozen data points for each actions taken, e.g., offense, penalty, penalty date, job title, grade, work unit, seniority, prior discipline and date, race, gender, latest appraisal score, etc. That is negotiable and often it will be too late to ask for it once an adverse action has been proposed. Moreover, if such a spreadsheet enables you to identify a close match anywhere in the agency it will be much easier to convince a judge or arbitrator to order the agency to more fully disclose the details of one or a couple of cases than all of them.
3 – If you have access to a good set of lawyers you should encourage them to begin looking for a case that would enable them to challenge the new MSPB interpretation in court. Ideally, Mr. Singh will do that.
The question of who are similarly situated employees or, to use a more formal term, comparators is one that has interested us at Fedsmill for a while, e.g. the different approach used by EEOC, MSPB, FLRA, etc. Here are some prior posts if you are similarly interested.