All too often in Chapter 75 removal cases, the Deciding Official glosses over the Douglas factors, placing inappropriate emphasis on certain factors. Agency Deciding Officials all too frequently over-emphasize factors such as the gravity of the offense, the harm to the “national interest”, and sometimes, the fact that the appellant is a manager or supervisory employee. By contrast Agency Deciding Officials often fail to consider other Douglas factors, such as length of service, prior disciplinary history and performance record, and other mitigating circumstances.
Usually, it is the job of the appellant or his/her attorney to show the Merit Systems Protection Board Administrative Judge, through testimony and documents, the shortcomings of the Deciding Official’s consideration of the Douglas Factors. In a recent decision by the MSPB, the advocate’s job just got a little easier.
Mr. Del Prete was a PS-05 S&SD Associate with the Postal Service. He was removed for several specifications on one charge of Failure to Account for Postal Funds/Failure to Follow Procedures. The triggering event was a breach in accounting procedures that resulted in shortages of postal stock totaling $45,000. Because the Administrative Judge sustained the charge (but not all of the specifications), a review of the Douglas Factors was appropriate.
The Deciding Official, according to the Judge, placed “…overwhelming concern [on] the amount of the shortage…and his belief that as the acting supervisor, the appellant should have been held to a higher standard because of his fiduciary role.” Del Prete v. U.S.P.S., MSPB Docket No. NY-0752-0143-A-1 (January 18, 2007). Additionally, the Administrative Judge found that “…the deciding official failed to consider mitigating factors, such as the appellant’s 34 years of unblemished service, prior work record, lack of intent and culpability…and his wife’s illness.” Id. As a result, the MSPB found the penalty to be unreasonable, and reduced the removal to a 60-day suspension.
The moral of the story – Agency Deciding Officials can not and should not rush to judgment just because they feel that the misconduct is serious. A Deciding Official has a duty to weigh all of the Douglas factors, particularly when an employee has invested the better part of their professional life in public service.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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