Douglas v. Veterans Administration
Curtis Douglas v. Veterans Administration was the lead case in a 1981 decision of the Merit Systems Protection Board which defined three issues as a matter of labor law:
- That the MSPB, as the successor to the Civil Service Commission, could reduce a penalty given by a government agency for employee misconduct, if it determined that "the penalty does not promote the efficiency of the service";
- That the standard of preponderance of the evidence is the correct standard to use in determining if an agency-imposed sanction should be sustained; and
- Finally, it defined the factors (later called Douglas factors) which must be used by government agencies (when applicable) in determining the appropriate sanction.
The original MSPB case involved seven government employees, all of whom were terminated from employment for "job-related misconduct under 5 U.S.C. 7513", and four government agencies (three of which were branches of the Armed Services, but the cases involved civilian employees and not military personnel). The seven employees, their employer, and the basis for termination were as follows:
- Curtis Douglas, Veterans Administration, being absent without leave, being away from his duty station without authorization, and selling his employment services to a fellow employee
- Joseph E. Cicero, Veterans Administration, failure to comply with supervisory direction
- Douglas C. Jackson, Air Force, misrepresenting that he was enrolled in a night college class to obtain a day shift assignment
- James K. Anderson, Air Force, failure to request leave due to chronic foot problems
- Luis A. Jimenez, Army, unauthorized use of a government vehicle (which also resulted in being involved in an accident)
- John Nocifore, Navy, theft of government property
- John Dennis, Navy, theft of government property
(NOTE: Nocifore and Dennis had their cases tried together as they were involved in the same action.)
All seven employees appealed the terminations on grounds that the penalties were too severe (Cicero also argued that before he could follow his supervisor's direction, another employee had already completed the task).
Originally the MSPB upheld all seven terminations, but then reopened the case and requested comments via the Federal Register regarding whether it could reduce a penalty given by a government agency for employee misconduct, if it determined that "the penalty does not promote the efficiency of the service", and whether preponderance of the evidence is the proper standard to use. Upon reconsideration, it determined that it had the authority to reduce a penalty, that the preponderance standard was proper, and outlined 12 factors that agencies must use in determining the proper punishment (if the agency fails to consider the applicable factors its decision will not be granted deference):
- 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;
- the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
- the employee's past disciplinary record;
- the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
- the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisorsâ confidence in the employee's work ability to perform assigned duties;
- consistency of the penalty with those imposed upon other employees for the same or similar offenses;
- consistency of the penalty with any applicable agency table of penalties;
- the notoriety of the offense or its impact upon the reputation of the agency;
- 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;
- the potential for the employee's rehabilitation;
- 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
- the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
In the end, five of the seven terminations were upheld, while Anderson's termination was vacated and reduced to a 30-day suspension, and Jimenez's termination was vacated and remanded to the MSPB's New York Field Office for further findings.