By Ann Boehm, November 15, 2022
Anyone who has taken my training or read my articles knows how much I like the Douglas factors, established by the Merit Systems Protection Board (MSPB or Board) way back in 1981: Douglas v. VA, 5 MSPB 313 (1981). The Douglas factors serve as a logical tool that enables proposing and deciding officials to figure out a defensible, reasonable penalty for an employee who engages in misconduct.
For proposing officials and deciding officials, it is necessary to understand the importance of Douglas Factor number 5: “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.” Douglas, 5 MSPB at 332. It is your chance to tell the story!
I acknowledge that it is well-settled in Board law that the most important Douglas Factor is number 1. MSPB cases repeatedly state, “[i]n selecting a reasonable penalty, the Board must 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.” But what is often overlooked is the significant weight the Board gives to Douglas Factor 5.
Cases from the long-awaited newly-quorumed (yep, I know that is not a real word) MSPB substantiate the importance of Douglas Factor 5. In Sheiman v. Department of the Treasury, the Board agreed that the employee’s continued use of sick leave to play golf justified removal, highlighting that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision,” and “[t]he deciding official’s loss of trust is an aggravating factor.” MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP).
Similarly, in Purifoy v. DVA, the Board found removal for AWOL to be reasonable, noting “[t]he deciding official’s loss of confidence in the appellant and his concern that the appellant’s misconduct conveyed a negative message to other employees are also aggravating factors.” MSPB No. CH-0752-14-0185-M-1, at 8 (May 16, 2022) (NP). Specifically, “the deciding official testified that he did not think that the appellant ‘was going to come back and be a good employee’ and, according to the Douglas factors worksheet, which the deciding official considered in imposing the appellant’s removal, his supervisors ‘lost all confidence in his ability to perform his assigned duties’ because he was not present to perform them.” Id.
(Can we pause for a moment to appreciate that last sentence? The supervisors lost confidence in his ability to perform his duties because he was not there – he was AWOL. Hahaha. Makes sense to me.)
Supervisor confidence can also benefit an employee. In my experience, I have seen instances where an employee really messed up with some major misconduct, but the supervisor’s continued confidence in the employee resulted in a penalty less than removal.
And that is ultimately my point about Douglas Factor 5. Supervisors know their employees. They know the impact misconduct has on their office and their mission. They are the only ones who know that. The Board understands this.
Tell your story. The Board will listen. And that’s Good News! Boehm@FELTG.com