Ask FELTG: If an appellant mentions a struggle with alcoholism in the response to a proposed removal, should the agency consider that an aggravating or mitigating Douglas factor?

June 25, 2025

Let’s take a look at a recent case that discussed this exact question, when a GS-13 Deputy U.S. Marshal was removed for conduct unbecoming because while off duty he:

  • Went to a bar while carrying a personally owned handgun;
  • Consumed numerous alcoholic drinks, to the point where he blacked out, then walked to a localMcDonald’s and engaged in a verbal altercation with the cashier, and placed his agency credentials on the counter; and
  • After being escorted out of the McDonald’s, drew his handgun.

Brown v. DOJ, NY-0752-20-0061-I-2, 2-3 (Feb. 5, 2025)(NP).

The appellant filed a Board appeal, challenging the reasonableness of the penalty and arguing that his removal was the result of disability discrimination on the basis of alcoholism. Id. at 3. The administrative judge (AJ) found that the deciding official (DO) did not consider the appellant’s argument that the misconduct was caused by his alcoholism, so the AJ “conducted her own Douglas factors analysis, acknowledging that, while she accepted the fact that the appellant was an alcoholic, it did not warrant a lesser penalty due to the dangerous nature of the misconduct, his position as a law enforcement officer, the fact that alcoholism did not explain all of his misconduct, and alcohol rehabilitation did not entitle him to a federal law enforcement career.” Id. at 4.

On petition for review, (PFR) the appellant argued that the AJ erred by considering his alcoholism as an aggravating factor rather than a mitigating factor. The Board agreed, finding the AJ committed an error “to the extent that she considered the appellant’s alcoholism to be an aggravating factor in the initial decision…See Walsh v. U.S. Postal Service, 74 M.S.P.R. 627, 638-39 (1997) (explaining that claims of alcoholism, even if raised as part of an affirmative defense, should still be considered as a mitigating factor).” Id. at 5.

That said, the Board also determined the mischaracterization of the alcoholism as aggravating rather than mitigating was not prejudicial to the outcome of the case, and the aggravating Douglas factors still justified removal:

 

The appellant engaged in egregious and dangerous behavior, placing himself and innocent bystanders at risk. He brought a gun with him to a bar, consumed excessive amounts of alcohol, and displayed his agency credentials without official purpose, seemingly in an attempt to abuse his authority. … He engaged in a verbal altercation with an employee at McDonald’s to the point where he was escorted out of the restaurant by concerned citizens and drew his gun, further scaring those individuals… [T]he very core of a law enforcement officer’s role is to create safety, promote order, and enforce laws. The appellant broke the law, and his actions created chaos and endangered the safety of himself and others, which is antithetical to his role as a law enforcement officer. As the Board has held, the nature and seriousness of the offense is the most important Douglas factor, and we find that the outrageous nature of the appellant’s misconduct justifies removal.

Id. at 6 (internal citations omitted).

The Board also held the agency did not engage in disability discrimination.

We at FELTG cannot stress enough the importance of a thorough Douglas analysis. And if you do it well, your case might survive even if you make a mistake elsewhere. info@feltg.com

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