CAN YOU KEEP YOUR JOB EVEN AFTER RECEIVING A NOTICE OF REMOVAL FOR MISCONDUCT?

It depends—Some Federal Employees Can Successfully Challenge a Notice of Removal, Even When Misconduct Was Admitted or Substantiated

If you just received a Notice of Proposed Removal, you might feel like this is end of the road for your career—especially if an internal investigation found misconduct or you already admitted to some level of wrongdoing. Many employees assume that once the agency has “proven” misconduct, termination is inevitable. However, that is not always the case.

Removal from federal service is a major adverse action subject to statutory procedural and substantive safeguards under Title 5, Chapter 75. An agency is permitted to remove an employee only for such cause as will promote the efficiency of the service. Brenner v. Dep’t of Veterans Affairs, 990 F.3d 1313 (Fed. Cir. 2021). So while federal agencies do have authority to discipline employees for misconduct, removal is not automatic. Before an agency can lawfully remove a federal employee, it must still satisfy important legal requirements, including proving that the misconduct occurred, establishing a connection between the misconduct and the efficiency of the service, and demonstrating that the proposed penalty is reasonable under the circumstances

This final step—the appropriateness of the penalty—is where many cases are won or lost. A finding of misconduct does not erase the employee’s entire career, performance history, or circumstances. Under the framework established by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, agencies must consider mitigating factors before imposing discipline, especially the severe penalty of removal.

If you are facing proposed removal, the question is often not simply “Did misconduct occur?” The more important questions may be:

• Did the agency accurately investigate what happened?
• Did the Notice of Proposed Removal rely on incomplete or misleading facts?
• Did the agency consider evidence favorable to the employee?
• Did the deciding official properly evaluate mitigating factors?
• Is removal truly necessary to promote the efficiency of the service?

These issues can make a significant difference in whether you get to keep your job.

What Are the Douglas Factors and Why Do They Matter?

The Douglas decision created the framework agencies and the MSPB use when evaluating whether a disciplinary penalty is reasonable. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981). Under Douglas, agencies should consider factors such as:

• The nature and seriousness of the offense;
• The employee’s job duties and level of responsibility;
• The employee’s past disciplinary record;
• The employee’s past work performance;
• The consistency of the penalty with similar cases;
• The potential for rehabilitation;
• Mitigating circumstances surrounding the misconduct;
• The effectiveness of alternative penalties.

These factors exist because federal discipline is not supposed to be purely punitive. The purpose of discipline is to promote the efficiency of the service. A strong disciplinary response should protect the agency’s mission while also considering whether a lesser penalty could accomplish the same goal.

Federal Agencies Must Prove More Than Just Misconduct

In a federal adverse action case, agencies generally must establish three separate elements:

• The employee committed the charged misconduct.
• There is sufficient nexus between the misconduct and the efficiency of the service; and
• The penalty proposed and imposed is appropriate for the specific circumstances of the case.

One federal court explained this framework and emphasized that agencies carry the burden of persuasion regarding all three elements. Parsons v. Department of the Air Force 707 F.2d 1406, 1408 (D.C. Cir. 1983). Often, the third element is often overlooked. Even if an agency proves misconduct and establishes a legitimate workplace concern, it must still justify why removal instead of a lesser penalty is appropriate. Federal employment law does not permit agencies to automatically impose the maximum penalty simply because an employee violated a rule.

3 CASES WHERE REMOVAL WAS MITIGATED TO A LESSER PENALTY

Case Example #1: Misconduct Proven, But Removal Was Not Automatically Justified

Proving misconduct is only part of the analysis. Parsons v. Department of the Air Force, 707 F.2d at 1411–12. Parsons was an Air Force firefighter who requested leave to attend a union seminar. After the leave was cancelled due to staffing needs, Parsons called his supervisor and stated that he was sick and unable to report to work. The agency later determined that Parsons was actually traveling to the seminar and removed him for falsifying a government document and being absent without authorization. The MSPB initially upheld his removal. However, on appeal, the D.C. Circuit found that the agency failed to adequately justify the penalty. The court agreed that the misconduct occurred and that there was a sufficient connection between the conduct and the efficiency of the service. But the court concluded the Air Force had not demonstrated that removal was appropriate after considering the individual circumstances of the case.

The court noted several mitigating factors that the agency failed to meaningfully consider:

• Parsons had nearly ten years of federal service;
• He had only one prior disciplinary action, unrelated to his government duties;
• He had received positive recognition from the Air Force;
• His supervisors otherwise had no significant concerns about his work performance.

The court also emphasized that the agency’s own penalty guidelines provided a range of possible penalties, from reprimand to removal, for falsification of a government document. Id. at 1412. Because the agency appeared to focus primarily on the seriousness of the offense itself rather than the complete circumstances of the employee’s case, the court remanded the matter for further consideration under Douglas. The lesson? Even serious misconduct does not eliminate the employee’s right to have the penalty individually evaluated.

Case Example #2: Strong Mitigation Can Make Removal Excessive with Technical Violations

Even when an agency proves that an employee violated agency rules, removal may still be an unreasonable penalty under the circumstances. In Van Fossen v. Merit Systems Protection Board, 788 F.2d 748 (Fed. Cir. 1986), the employee was removed after engaging in outside employment that the agency claimed had not been properly authorized. The Merit Systems Protection Board ultimately found that the employee had technically violated agency procedures. However, the Federal Circuit emphasized that the violations were largely technical rather than intentional misconduct.

Several important mitigating facts influenced the court:

• The employee made a good-faith effort to comply with the agency’s procedures.
• The supervisor who approved the outside employment believed he had authority to grant the approval.
• There was no evidence that the proper approving official would have denied permission.
• The employee reasonably relied on that authorization for more than four years.
• The government suffered no financial loss.
• There was no actual conflict of interest.
• The employee immediately stopped the outside work when instructed.
• He had nearly twenty years of exemplary federal service with an unblemished disciplinary record.

The Federal Circuit noted that although the charges were sustained, they were “technical and very minor.” The Court held removal was excessive because the agency had imposed the most severe penalty despite those mitigating circumstances. The employee’s removal was reduced to a thirty-day suspension, illustrating that even substantiated misconduct does not automatically justify termination where the Douglas factors strongly favor a lesser penalty

Case #3: When Supervisors Approve the Conduct, Removal May Be Unreasonable

The Federal Circuit has also recognized that agencies cannot ignore their own role in creating or condoning the circumstances that later become the basis for discipline. In Crane v. Department of the Air Force, 240 F. App’x 415 (Fed. Cir. 2007), an Air Force employee operated a private masonry business with the knowledge of his supervisors. His supervisor directed him to contact a potential customer, approved construction of a prototype barrier on base using surplus materials, and understood that the employee was pursuing the opportunity through his private business. Nearly a year later, the agency proposed removing the employee for misuse of government property.

The Federal Circuit concluded that the agency failed to properly weigh critical mitigating circumstances, including:

• Supervisors knew about and had long tolerated the employee’s outside business.
• The supervisor specifically initiated the contact with the potential customer.
• The supervisor approved construction of the prototype that ultimately became the basis for discipline.
• The employee had never been warned that this conduct violated agency rules.
• The employee had an outstanding performance record, numerous awards, and consistently favorable evaluations.

The court explained that when an agency has previously condoned conduct, basic fairness generally requires notice before imposing the harshest possible discipline. Because the Air Force failed to adequately consider those mitigating facts and the employee had never been warned that his conduct could lead to removal, the Federal Circuit reversed the removal and remanded the case for determination of a more appropriate penalty.

**Please note that every case is different and SPECIFIC RESULTS ARE NOT GUARANTEED. Each case is fact specific and outcome depends on a variety of factors. **

HOW WORKING WITH A FEDERAL EMPLOYMENT LAW ATTORNEY CAN HELP

Unlike many employment lawyers who primarily handle private-sector disputes, attorneys who practice federal employment law understand the unique statutes, regulations, and administrative procedures that govern federal employees. Depending on the circumstances, a federal employment law attorney may help employees:

• Prepare a persuasive written and oral reply to the Notice of Proposed Removal;
• Identify inconsistencies, investigative deficiencies, or factual errors in the agency’s evidence;
• Evaluate whether the agency followed required procedures under 5 U.S.C. Chapter 75 and applicable MSPB regulations;
• Analyze whether the deciding official properly considered mitigating evidence;
• Present evidence under the Douglas factors showing why removal is excessive;
• Highlight factors such as length of service, performance history, rehabilitation potential, and comparable discipline imposed on other employees;
• Preserve appeal rights before the MSPB, Equal Employment Opportunity Commission (EEOC), negotiated grievance procedures, or other available forums;
• Depending on the case, negotiate alternatives to removal, including reassignment, settlement agreements, last chance agreements, retirement options, or preservation of a clean employment record.

In many cases, the most important work happens before the agency makes its final decision. A well-prepared written response to a proposed removal can give the deciding official a complete picture of the employee—not just the allegations. Depending on the facts of your specific case, you may also want to consider participating in an oral response after you submit the written response. A federal employment law attorney can advise you on preparing for an oral response.

FINAL THOUGHTS

A substantiated investigation does not necessarily mean you must lose your career. Federal agencies have the authority to discipline employees, but they must still follow the law. They must prove the misconduct, establish the required connection to the efficiency of the service, and select a penalty that is reasonable under the circumstances. Cases like Parsons demonstrate that even when misconduct is established, mitigating factors matter. Your entire career, performance history, circumstances surrounding the incident, and potential for rehabilitation cannot simply be ignored.

If you are facing a proposed removal or disciplinary action because of misconduct you already admitted to or that your agency investigated and substantiated, understanding your rights early can make a significant difference. The strongest defenses often come from carefully analyzing the agency’s evidence, identifying weaknesses in the investigation, and presenting a compelling explanation of why removal is not the appropriate outcome.

Take the first step in protecting your career and schedule a confidential consultation now with the federal employment law attorney at Shield Law.