MSPB’S 13TH DOUGLAS FACTOR (Revised)

MSPB and virtually every arbitrator use the 12 so-called Douglas factors to decide whether to mitigate an adverse action penalty.  (See a complete list of the Douglas factors at the end of this posting.) It is absolutely vital that union reps assert as many of them as possible when making replies, during grievance meetings, and at arbitrations or MSPB hearings. Similarly, agency ER specialists need to make sure deciding officials address every one of them before imposing a final decision. But it is just as important to know that from time-to-time MSPB recognizes more than the 12 Douglas factors as grounds to mitigate. Here is how that works.

The Board has held that an employee’s medical condition or mental impairment at the time of the infraction is another factor that can be used to reduce the penalty (See Woebcke, 2010)

. . . the Board has held that evidence that an employee’s medical condition or mental impairment played a part in the charged misconduct is ordinarily entitled to considerable weight as a mitigating factor. See Sherlock v. General Services Administration, 103 M.S.P.R. 352, ¶ 12 (2006); Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997). Moreover, the Board has found that a medical or mental impairment is not a significant mitigating factor in the absence of evidence that the impairment can be remedied or controlled, i.e., when the potential for rehabilitation is poor. See Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, 458 (2001). Even where the medical condition or mental impairment does not rise to the level of a disability, if the agency knows about it before taking the action, such condition may be considered in mitigating the penalty. Roseman, 76 M.S.P.R. at 345.

Moreover, the Board said in that same case that there is no need to prove a causal link between the condition or impairment and the infraction.  A mere potential linkage is enough.

The Board has also found that it is not necessary to demonstrate that an appellant’s actions were beyond his control for a mental impairment to be considered as a mitigating factor. See Slaughter v. Department of Agriculture, 56 M.S.P.R. 349, 354-55 (1993). Nor is the appellant required to show through medical evidence that such condition contributed to the misconduct at issue. Id. at n.11. The Board has found that affidavits that provide specific evidence regarding the manner in which an appellant’s emotional condition may have influenced the misconduct may lend support to a finding that the appellant was suffering from emotional problems and may therefore be considered. Id. at 355-56.

Here is how Woebcke proved his assertion.

Here, the appellant not only provided medical reports to support the fact that at the time of the misconduct he was suffering from depression, but Brenda Shelley-McIntyre, Ph.D., gave unrefuted testimony indicating that the appellant’s depression was a contributing factor to the misconduct in question. She testified that she began treating the appellant shortly after the incident in question and has been treating him for approximately 2 years at intervals of once a week. Hearing Transcript (HT) at 15, 22. She testified that the appellant was depressed before the incident took place and based her opinion on the course of events in the appellant’s life over several years preceding the misconduct. HT at 17.  Among these were: the death of the appellant’s mother; the death of his wife’s mother and father; and his wife’s miscarriage after a difficult pregnancy. Dr. Shelley-McIntyre testified that the miscarriage was especially stressful because the appellant and his wife were expecting twins as the result of a third attempt at in vitro fertilization and 6 months into the pregnancy, the appellant’s wife miscarried. HT at 19. She testified that the appellant’s wife’s life was in danger due to bleeding at the time of the miscarriage and the appellant put aside his own feelings to console his wife, disallowing him the opportunity to grieve himself. HT at 19. She testified that, because of the stress, the appellant and his wife argued, including having an all-night argument the night before the appellant left on his assignment to Hawaii. HT at 20-21. She testified that the confluence of all of these events, the deaths, the compounded losses, the difficult pregnancy, and the couple falling apart, all caused the appellant to fall apart and created a situation where he made an error in judgment. HT at 21. She testified that, nonetheless, the appellant accepted full responsibility for his actions. Id. She testified that the likelihood of recurrence of the appellant’s misconduct was “nil to nonexistent.” HT at 26. The administrative judge found Dr. Shelley-McIntyre’s testimony extremely credible, ID at 30, and we find no reason not to defer to this finding, see Haebe, 288 F.3d at 1301. We also find that Dr. Shelley-McIntyre’s testimony has probative value because she provided a reasoned explanation for her medical opinions. See Stevens v. Department of the Army, 73 M.S.P.R. 619, 627 (1997) (in assessing the probative value of medical opinion evidence, the Board considers the qualifications of the medical expert, her familiarity with the appellant’s condition, and whether her opinion provides a reasoned explanation for her findings).

If the problem is related to prescription drugs, check out decisions where the Board has held that the employee’s use of a prescription drug that played a part in the charged misconduct can be a substantial mitigating factor. Howard v. U.S. Postal Service, 723 MSPR 422 and Bond v Department of Energy, (1999).

Back in 2012 the Federal Circuit court overturned a Board decision because MSPB had failed to consider medical evidence and made the point that the Board (and we assume arbitrators) are obligated to consider it even if it is generated after the employee’s removal. Here is an excerpt from that decision (Norris v. SEC) that is worth including in any defense you raise.

The USPS issued Malloy a notice of proposed removal on August 29, 2006; and she was ultimately removed effective October 6, 2006. Id. Malloy appealed her removal to the Board. At the hearing before the Board, Malloy submitted extensive medical evidence, including, inter alia, a post-removal report dated December 5, 2006, from Malloy’s physician who had treated her for severe recurrent major depression from September 26, 2006, to December 16, 2006. Id. at 1355. The report specifically linked Malloy’s inappropriate behavior to her medical condition. Id. In sustaining Malloy’s removal, the Board failed to explicitly address the medical evidence submitted by Malloy, though it noted that it had “reviewed her submissions.” Id. at 1356. We held that “when mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against the employee.” Id. Thus, although the Board stated that all of the relevant Douglas factors had been considered, because the Board failed to explicitly analyze Malloy’s medical evidence, we remanded the case for consideration of Malloy’s evidence (including the post-removal report) and “reapplication of the Douglas factors in light of this evidence.”

In its latest decision to overturn a removal due to the influence of the employee’s medical condition, Campbell v US Postal, AT-0752-15-0019-I-1 (Sept. 9 2016) the Board addressed a situation where the employee alleged he had a stress reaction stemming from his military service disability when his supervisor gave him an order he disobeyed.

However, contrary to the agency’s assertions, the administrative judge noted the appellant’s reasonably substantiated medical condition and explained how the appellant credibly testified that his disability caused a stress reaction when the manager confronted him on the day in question. ID at 18. Evidence that an appellant’s medical condition or mental impairment played a role in the charged misconduct ordinarily is entitled to considerable weight as a mitigating penalty factor. See Sherlock v. General Services Administration, 103 M.S.P.R. 352, ¶ 12 (2006); Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997). Even when the medical condition or mental impairment does not rise to the level of a disability, if, as occurred here, ID at 18-19, the agency knew about such condition or impairment before taking its action, such condition or impairment may be considered in mitigating the penalty.

So, in this case the number 13 is a lucky one for union reps trying to defend employees from adverse actions.

 

The Douglas Factors:

(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 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) 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.

(This article is a revised version of one that first appeared in Fedsmill.com on 4/16/12.)

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FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.

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