MSPB Trashes “Douglas” in Poorly Reasoned Decision

The MSPB appears to have thrown a seminal decision into doubt in second guessing a deciding official who had considered the “Douglas Factors”.

Early on in its existence the Merit Systems Protection decided Curtis Douglas vs. Veterans Administration et al 5 MSPB 313 (1981) In this decision, it established the so called “Douglas Factors” which Agency deciding officials must weigh in assessing the penalty for misconduct in an adverse action. Deciding officials are expected, as a result of this case and long standing Board practice, to identify the factors that they considered relevant to the case at hand and how they assessed the employee’s misconduct in relation to a specific factor.

Agency advocates, over time, came to highly value the Douglas decision along with other Board cases in advising managers of standards an Agency must meet to sustain an adverse action.  In a 2008 article, I compared the Board to Emeril Legasse in that it created a “cookbook” managers could follow to get an adverse action “right.”  Over the years, unions and employee lawyers whined incessantly about the high number of cases in which Agencies prevailed before MSPB apparently claiming some sort of conspiracy was in effect.  The truth is that Agencies won cases because they followed MSPB’s policies as evidenced in both its case law and that of the Federal Circuit Court of Appeal.  In other words, the Board was successful in getting employees treated both fairly and with the applicable due process requirements met.

In a very recent case involving a manager who violated a known Agency rule and then lied to cover it up, the majority members of the Board reversed the Agency action not because the deciding official ignored the Douglas factors; not because he failed to consider a specific Douglas factor: not because the specific factor considered wasn’t relevant; not because the consideration was unreasonable or unreasoned; but, because the majority disagreed with the decision.

This case begs for an appeal to the Federal Circuit.  The very purpose of Douglas is to give managers a reliable basis for decision making on penalty selection and to assure employees get a fair deal.  The majority of this Board apparently still believes its former employer’s (unions in both cases) press releases and hype.

There is an allusion in the dissent to this case by the minority member to a claimed “panic attack” on the part of the appellant which was in some way was construed by the Board majority as responsible for his lying to a subordinate, a superior, and the police.  The individual apparently also, according to the dissent appeared to try to game the Agency’s Office of Professional Responsibility in its investigation.  It is made clear in the dissent that the employee’s lies were not the result of a panic attack as alleged but of the fear of getting caught engaging in misconduct.  As you read the decision and the dissent, Shakespeare’s lines about a tangled web come to mind.  George Bernard Shaw said “the liar’s punishment is not in the least that he is not believed, but that he cannot believe anyone else.

I suggested to a friend in the business that this case may further discourage managers from taking actions.  He said that perhaps, in the absence of clear standards, managers might fire more people and let the Board sort it out on appeal and, since they were so eager to second guess Agency management, maybe they should make all the decisions themselves.

The MSPB has a critical and serious job to do.  Federal employee discipline and morale rely heavily on their doing it right.  Lately, they have been getting it wrong.  They appear to be throwing out over thirty years of carefully considered precedent in favor of a haphazard approach to adjudicating adverse actions.  Perhaps they believe that if they make their decisions as random as arbitration, a future government reform will replace the Board with arbitration and they can resume a more lucrative practice in employee advocacy when they leave.  I never ever thought I’d say it but shame on you MSPB.  You have let the Federal workforce down and the country along with it.

If you discern an opinion above, please consider it my responsibility.

Portner v. Justice

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.