KCNF partner Aaron Herreras Szot was quoted in a Law.com article examining the new rule that changes how the Merit Systems Protection Board (MSPB) evaluates discipline against federal employees.
The MSPB’s final rule retires the 12 Douglas Factors that have guided penalty review in federal employee appeals since the Board’s 1981 decision in Douglas v. Veterans Administration. Starting October 5, MSPB administrative judges will instead consider whether a penalty falls within the “tolerable limits of reasonableness” based on the totality of the circumstances in each case.
Herreras Szot told Law.com that a lawsuit challenging the rule change seems likely. She explained that the Douglas Factors have not been eliminated and remain available to agencies, judges, and attorneys. What the rule changes is that the factors no longer have to be analyzed in every case, and an agency’s failure to address them is no longer, on its own, a reason to overturn the penalty.
Herreras Szot noted that de-emphasizing the factors could give agency managers more discretion and lead to inconsistent outcomes. “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,” she said, pointing to due process concerns about how penalty analyses will be carried out.
She also cautioned against assuming the change eliminates meaningful review. “There’s certainly an argument to be made that this is going to make it easier for agencies to remove employees,” Herreras 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.”
The MSPB rule is one of several changes affecting federal employees. The EEOC has separately proposed major changes to the federal EEO complaint process. Read KCNF’s stage-by-stage guide to the proposed EEOC rule.