The Douglas Factors: Disciplining employees is a fact of life
posted June 9, 2003
By William N. Rudman
Disciplining employees is a fact of life for federal managers. In this time of enhanced missions and smaller staffs, agencies can ill afford to carry employees whose unacceptable behavior eats up their bosses’ time, distracts their co-workers and hinders accomplishment of the agency’s goals.
Incidents of espionage, bribery and homicide are thankfully rare, but offenses such as viewing pornography on the office computer, misusing agency vehicles, abusing sick leave, using government charge cards to buy personal items and insubordination are everyday occurrences.
First-line supervisors and mid-level managers, rather than senior executives, are most involved in disciplinary actions. They primarily serve as the proposing and deciding officials in imposing discipline, and they bear the brunt of an agency’s failure to deal with problem employees. Assisted by personnel specialists and, sometimes, agency attorneys, managers draw up the charges, weigh the evidence and select penalties.
If an agency decides to remove or demote an employee or to suspend him for more than 14 days, the employee has the right to appeal to the Merit Systems Protection Board. Bargaining-unit employees have the same appeal rights, or they can take any formal disciplinary action to arbitration as long as the union agrees to do so.
Judges and arbitrators have the power to mitigate an agency’s penalty if they find it unreasonably harsh. To assist agencies in selecting a reasonable penalty, the MSPB has crafted the Douglas Factors, which are used to weigh issues such as the employee’s duties, disciplinary and work records, and similar cases in the decision-making process. The 12 criteria are named after the 1981 case, Douglas v. Veterans Administration (5 MSPR 280).
One of the Douglas Factors directs managers to consult “any applicable agency table of penalties” to determine the consistency of a penalty. About 75 percent of agencies use these tables, which detail the range of punishments deemed appropriate for a given offense. Agency personnel offices developed the tables to help managers decide penalties and to avoid wildly different punishments for the same misdeeds. But these tables can produce the opposite effect and prompt the Merit Systems Protection Board to throw out a penalty.
At one end of the spectrum is a congressionally mandated punishment such as going on strike against the government (mandatory removal) and willful misuse of a government vehicle (at minimum a 30-day suspension and a maximum of removal). Sometimes Congress prescribes penalties for specific agencies such as the IRS with its infamous 10 deadly sins. When Congress selects a penalty or a range of penalties, neither a deciding official nor a judge or arbitrator can deviate from it. As a result, agencies sometimes are forced to reimpose harsher penalties when managers attempt to show mercy.
At the other extreme is a manager who chooses mandatory removal for a first offense in support of an agency’s zero-tolerance policy. In such cases, deciding officials, like lambs to the slaughter, blithely testify at MSPB hearings that they considered no penalty but removal, because it was mandated by the agency’s table. The board’s reaction may be to void the penalty and formulate its own decision. Why? Failure to consider the Douglas Factors.
Although using “any applicable agency table of penalties” is, in fact, one of the Douglas factors, many others carry equal or greater weight—such as the seriousness of the offense, prior disciplinary actions, job performance, notoriety and potential for rehabilitation. Even if the MSPB agrees with an agency’s penalty selection, it doesn’t condone blind adherence to the penalty found in the table. At a minimum, the board will re-examine the agency’s penalty and possibly substitute its own judgment.
In a recent case, a Postal Service employee, during an argument with her boss, threw a can of soda, which hit the wall a foot away from him. Although the woman had 20 years of service and an impeccable conduct and performance record, she was fired. On appeal, the MSPB said it “will modify an agency-imposed penalty only when it finds the agency failed to weigh the relevant factors [i.e., the Douglas Factors] or the agency’s judgment clearly exceeded the bounds of reasonableness.” The deciding official told the board he interpreted the Postal Service’s zero tolerance policy on “violence, threats, harassment, intimidation or bullying” to mean automatic dismissal. For this sin against Douglas, the board changed the removal to a 45-day suspension.
On the other hand, what if a disciplined employee says the agency failed to abide by its table? An Interior Department employee demoted for writing a sexually explicit parody, identifying co-workers as lesbians and adulterers, claimed just that. The Federal Circuit Court of Appeals rejected his plea, noting that the table was considered a guide, was far from comprehensive, contained no mandatory language and specifically stated that a penalty may vary from that contained in the table.
An agency that fails to characterize its table as a nonmandatory guideline could find its hands tied, particularly in an egregious case of misconduct. In one case, for example, an agency’s table prohibited managers from exceeding the maximum penalty shown, except in unusual circumstances. In such a case, the MSPB says an agency must specify the unusual circumstances.
The most pernicious problem with penalty tables is an agency’s tendency to force every disciplinary action into one of the offenses enumerated in its table. No agency’s table of offenses is all-inclusive. The Supreme Court itself has said it “is not feasible or necessary for the government to spell out in detail all that conduct which will result in [disciplinary action].” Attempts to pigeonhole all misconduct into the offenses listed in the tables are in part a result of the MSPB’s hypertechnical approach to penalty selection.
In one example, the Federal Circuit Court of Appeals reversed a prison guard’s removal for theft because she had returned the money in question before she was caught. Thus the agency was unable to show intent to keep the item, a required legal requisite for theft. Perhaps she should have been charged with illegal borrowing. On the other hand, a Customs agent compromised an investigation by leaking sensitive information. In upholding a 60-day suspension, the MSPB said the agency didn’t have to prove the agent violated a specific statute or an offense listed in its table. The agency properly described the employee’s misconduct, proved it and established that the adverse action would promote the efficiency of Customs, the board said.
The table of penalties can be a useful guide to an agency’s wishes, but remember, the Merit Systems Protection Board has the final say. Deciding officials should do a Douglas analysis in every case, except when Congress has mandated a specific penalty, even if their agency has a zero-tolerance policy. They should check to see whether the table clearly states it is binding, contains mandatory language or permits deviations. If the misconduct does not fit perfectly into the legal definition of an offense listed in the table, officials should not pick a penalty that fits closest. Instead, they should describe the misbehavior in general terms and back it up with the detail required in all proposals of discipline. With these three points in mind, the table can be a helpful guide instead of a minefield.
(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
(2) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
(3) the employee’s past disciplinary record;
(4) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;
(7) consistency of the penalty with any applicable agency table of penalties;
(8) the notoriety of the offense or its impact upon the reputation of the agency;
(9) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
(10) the potential for the employee’s rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
(note: postalreporter removed the names and most of the references from decision)
Beth S. Slavet, Acting Chairman
OPINION AND ORDER
This case is before the Board on the agency’s timely petition for review of a March 6, 2000 initial decision that mitigated to a suspension for 14 calendar days the agency’s removal action based on a charge of unacceptable conduct. For the reasons discussed below, we GRANT the petition under 5 C.F.R. § 1201.115 and AFFIRM the initial decision AS MODIFIED, MITIGATING the appellant’s removal to a 45 calendar-day suspension.
Effective December 4, 1999, the agency removed the appellant, a Distribution Clerk, from her position in Hopkins, Minnesota, based on the charge of "UNACCEPTABLE CONDUCT." Initial . The supporting specification alleged the appellant was brought into the office of Customer Service Manager, on the morning of October 18, 1999, for instructions relating to the sorting of parcels. The appellant allegedly became angry during a discussion with Manager and the appellant’s supervisor. The appellant threw a partially filled soda can against a wall, the can hitting approximately one foot from the supervisor. The appellant was sent home for the day, and placed in "off-duty status with pay" on November 3, 1999, until the effective date of her removal.
The appellant filed a timely appeal in the Central Regional Office. The appellant stipulated to the charge, and the parties stipulated that the appellant did not have any relevant past disciplinary history. After a hearing to consider the appropriateness of the penalty, the administrative judge (AJ) found that the charge was proven, nexus was established, but the penalty of removal was unreasonable. The AJ mitigated the agency action to a suspension for 14 calendar days. The AJ ordered interim relief if a petition for review were filed.
Mitigation of Penalty
In support of its claim that the AJ erred in mitigating its removal penalty, the agency contends that the AJ erroneously considered the appellant’s subjective intent that she did not intend to hit (N/A) , the AJ gave too little weight to the seriousness of the proven "unacceptable conduct" of intentionally throwing a can of soda, and the AJ substituted his judgment for the agency. the Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Where, as here, the agency’s charge is sustained, the Board will modify an agency-imposed penalty only when it finds the agency failed to weigh the relevant factors or the agency’s judgment clearly exceeded the bounds of reasonableness. Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15 (2000); see LaChance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).
We agree with the AJ’s determination that the deciding official, (Postmaster) failed to appropriately consider the relevant Douglas factors here. Both Manager and Supervisor testified that they did not give serious consideration to a penalty other than removal. The Manager testified that the appellant did not have the potential for rehabilitation. However, the record does not show that the appellant had engaged in this type of behavior or any other misconduct in the past. The Manager contended that the appellant lacked rehabilitative potential because he "didn’t sense that she cared whether … she [was] going to change…." . But, as discussed in this Opinion, the Manager did not otherwise explain in either his decision letter or his hearing testimony why the appellant was not a good candidate for rehabilitation in light of this single act of misconduct, which she readily admitted before the agency and AJ, and in light of her good performance record, her lengthy federal service, and her lack of prior discipline. The Manager merely stated that the seriousness of the offense outweighed other Douglas factors.
The record shows that the Manager's failure to seriously consider a lesser penalty or the appellant’s rehabilitative potential is due, in large part, to his narrow interpretation of the agency’s "zero tolerance" policy. The policy, in essence, states that any violence, threats, harassment, intimidation or bullying will not be tolerated, and that management will take appropriate action when violations of the policy are reported. The policy does not state that any violation, no matter how minor or what the circumstances, will result in removal of the offending employee. O’Hara, however, interpreted the policy to require removal. When asked to explain the zero tolerance policy, O’Hara stated "[o]h, it—the zero tolerance—just what it says, zero tolerance. If there’s violence or threats of physical violence that (sic) there’s no tolerance for that, and to me zero tolerance means removal." The agency’s position that removal is the proper penalty for any violation of its zero tolerance policy, without real consideration by deciding official of the relevant mitigating factors and the particular circumstances of this case, is contrary to Douglas. See Miguel v. Department of the Army, 727 F.2d 1081, 1084 n.1 (Fed. Cir. 1984); Blake v. Department of Justice, 81 M.S.P.R. 394, ¶ 39 (1999). Further, the agency did not present any evidence of the consistency of the removal penalty for the appellant’s misconduct with any relevant table of penalties. Because the agency failed to weigh the relevant Douglas factors here, we find that the AJ correctly did not defer to the agency’s penalty determination. See Toth v. U.S. Postal Service, 76 M.S.P.R. 36, 39-40 (1997).
The agency rightly asserts in its petition that the Board "will consider, first and foremost, the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated." PFR File, Tab 1 at 7 (quoting Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997)). The record, however, establishes that the appellant’s proven misconduct is not as serious as the agency claimed it to be. The appellant admittedly became frustrated, lost her temper, and intentionally threw a soda can against the wall. The day after the incident the appellant provided a handwritten statement to the agency admitting her misconduct, stating that she was "very hurt & frustrated" because of working conditions and that "[t]he pop can was a frustration thing – not meant to hit [them]." Further, the appellant testified at the hearing that she did not intend to throw the soda can at her supervisor and that she did not have any animosity towards the Manager or Supervisor. The AJ found the appellant’s testimony was credible primarily because of the appellant’s close physical proximity to the Manager and Supervisor ’s office and the relative ease of hitting him with the soda can if that had been her intention. The AJ also noted that neither the Manager or Supervisor expressed any fear of the appellant. I
The agency did not charge the appellant with an assault or attempted assault of her supervisor, or any other intentional threatening behavior. However, the agency attempted to characterize the appellant’s misconduct as an extremely serious "attack designed to intimidate a supervisor attempting to carry out his job" and argued that the appellant’s case was akin to Facas v. U.S. Postal Service, 35 M.S.P.R. 426 (1987) (upholding removal of employee who threatened to kill the Postmaster), and Flanagan v. U.S. Postal Service, 56 M.S.P.R. 134 (1992) (upholding removal of employee who, inter alia, assaulted a manager by attempting to strangle him with his hands). In clear contrast, the appellant here was not charged with such serious misconduct as intentional threats or assault, and her proven "unacceptable conduct" did not constitute an intentional threat or assault on the Manager. The serious misconduct involved in Facas and Flanagan is factually distinguishable from the proven charge in this case. Moreover, the agency’s petition for review references two unpublished opinions of the U.S. Court of Appeals for the Federal Circuit, Crutcher v. U.S. Postal Service, No. 99-3095 (Fed. Cir. Feb. 15, 2000) (Table) (removal upheld for intentionally shoving a co-worker), and Gordon v. U.S. Postal Service, 113 F.3d 1258 (Fed. Cir. 1997) (Table) (removal upheld for unacceptable conduct by grabbing a co-worker by the collar in an altercation). PFR File, Tab 1 at 8-9. However, the Federal Circuit’s unpublished opinions have no precedential value to the Board. See Ruiz v. U.S. Postal Service, 59 M.S.P.R. 76, 79 (1993). Further, both Crutcher and Gordon notably involved intentional assaults, an offense not present here.
The appellant’s angry, intentional act of throwing the soda can against the wall could have endangered the Supervisor, her act caused legitimate concern by management for employees’ safety and it certainly required a firm and prompt response by the agency. But, the appellant’s single act of frustration does not support the agency’s removal penalty here. The appellant’s misconduct was not an assault, it was not intended to hurt anyone and it did not result in any injuries. There is no evidence that her single act of misconduct intimidated or placed in fear either of the supervisors present. Indeed, the Supervisor testified he had a good work relationship with the appellant and still considered her a friend. . The appellant had almost 20 years of total federal service, nearly 16 years with the agency and 4 years of active duty in the U.S. Marine Corps. Further, she had a clean disciplinary record and a good performance record. When the agency confronted the appellant about her misconduct she immediately acknowledged her responsibility in writing. She also stipulated to the charge and admitted her misconduct in her testimony.. Contrary to the agency’s argument and evidence below, the appellant’s acceptance of responsibility, considered with her lack of prior discipline and lengthy good performance record, shows that she is a good candidate for rehabilitation. Thus, we find that the AJ properly determined that removal exceeded the bounds of reasonableness. Initial Decision at 3.
When the Board sustains all of the agency charges, but finds the agency penalty too severe, the Board may only mitigate the penalty to the maximum reasonable penalty. See Devall, 178 F.3d at 1260. Although we have determined that removal is unreasonable in this case, we find that a 45 calendar–day suspension is the maximum reasonable penalty for the sustained charge under all the circumstances. This penalty satisfies the Board’s responsibility to correct the agency’s decision to bring its penalty within the parameters of reasonableness. See Douglas, 5 M.S.P.R. at 306.