GOOD NEWS ABOUT DOUGLAS FACTORS 6 & 10
Homeland Security fired a Deportation Officer because he traveled home from an assignment in Chile a day earlier than scheduled and spent the day with his family. DHS also cited the fact that he falsified some travel and overtime documents. AFGE took the case to arbitration only to lose. The case then was appealed to the Federal Circuit Court of Appeals where the court criticized the arbitrator for not thoroughly examining these two Douglas factors. The case should help unions demand more thorough and legitimate consideration of Douglas Factors by agency deciding officials and arbitrators. You can read the decision yourself at Torres v DHS, Fed. Cir. No. 22-2003 (2023), but here is our brief take on why it is valuable.
Under Douglas factor 6, the arbitrator must examine the “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” While the arbitrator found the agency should have considered four comparator cases cited by Mr. Torres, the court found that the arbitrator himself failed to justify why the situations in those cases were not similarly situated to Mr. Torres case. Overturning an arbitrator’s Douglas Factor analysis is not an earth-shattering decision by the court, but the following is.
MSPB has had a miserably narrow definition of what is a similarly situated employee or factual situations. Usually, it demands the person have the same job, work for the same supervisors, and violate the same conduct rules. But in this case the court held the agency and arbitrator were required to consider the 14-day suspension of a GS-13 Criminal Investigator and Special Agent who was given a 14-day suspension for three specifications of “making misstatements or misrepresentation” and two specifications of “absence without leave.” Different job title, different GS- grade, and different supervisory chain, yet the court held the arbitrator was wrong “not discuss any evidence as to why Mr. Torres’s … warranted a different disciplinary finding from other ICE law enforcement officers under Douglas factor.” Requiring comparison to other LEOs is a very valuable precedent for unions. The court went on to say, “…the arbitrator never explained why an ICE special agent with law enforcement duties would not be [job impaired] while Mr. Torres, another ICE law enforcement agent, would be….Thus, the arbitrator should have provided a more fulsome review, including a presentation of substantial evidence, to justify his determination that Douglas factor 6 weighed against Mr. Torres.” The court seemed motivated to consider these three employee valid comparators because they shared a single duty, i.e., testifying in court.
Douglas Factor 10 requires agencies and arbitrators to consider the “potential for the employee’s rehabilitation” The court criticized this arbitrator stating, “In a single paragraph, the arbitrator concluded that Mr. Torres “had no potential for rehabilitation, in light of the seriousness of the falsification misconduct.” It told the arbitrator and agency Douglas Factor 10 requires that they “explain why Mr. Torres,… is beyond rehabilitation when Mr. Torres presented cases where potentially…law enforcement officers with similar offenses remained in federal service.”
If you represent employees in disciplinary or adverse actions, this is a case you want to remember.
