MARGARET, MINNIE, AND THE DOUGLAS FACTORS

We recently wrote that agencies will sorely regret it if they decide to no longer consider the Douglas Factors when disciplining employees.  The White House brain trust may want them to do so, but those are the same people who brought us the promised two-week Iran conquest, the bungled  repairs of the reflecting pool that needed no repairs, and measles-measles-measles. But back to the endangered Douglas Factors and the stupidity of the new regulations. 

Before the Douglas Factors were adopted, the U.S. Courts spoke to what agencies needed to consider when imposing a disciplinary penalty. They did so most visibly in a case known as Margaret Boyce and Minnie Dixon, v. The United States, 543 F.2d 1290 (1976).  In that case, Margaret and Minnie admitted they did something that merited discipline, but argued the penalty of removal was too harsh.  The Court began its analysis writing,

“Some punishment was clearly warranted. However, plaintiffs have more than adequately demonstrated that the penalty of dismissal was in no way warranted given the circumstances of this case…if the punishment exceeds the range of sanctions permitted by statute or regulation, … or if the penalty is so harsh that it amounts to an abuse of discretion, … it cannot be permitted to stand.”

That is what every union should argue if an agency ignores that Douglas Factors.

Once that principle was affirmed the court listed factors it considered in overturning the removal penalty imposed on  Margaret and Minnie.

• the evidence supporting guilt was so slim and the de minimisnature of the amounts concerned;
• the agency had delayed over a year in bringing the charges;
• by joining the two minor charges with an unsupported serious allegation, it appeared that dismissal for the lesser offense might have been the vehicle for removing plaintiff where the agency was convinced that plaintiff was guilty of the serious act, but could not prove it;
• defendant attempted but completely failed to demonstrate that the maximum penalty was necessary to deter expense account “padding;” and
• plaintiff had an unblemished record of 25 years of Government service.

In such circumstances, we concluded that it was an abuse of discretion for defendant to impose the penalty of dismissal. The sanction was “so harsh and unconscionably disproportionate to the offense that it could not be permitted to stand.”

The court went on to add more factors agencies must consider to justify a penalty.

• plaintiffs’ failures were not intentional, but arose from a misguided belief;
• the agency must take some notice of the realities of modern life, the complexities involved;
• inadvertent conduct should be reflected in the penalty imposed;
• the employee’s knowledge, willfulness, or intentionally;
• procedures failed to satisfy the requisites of fundamental fairness mandated by the Constitution;
• the duty performances of the employees and their intent;
• the reasons for the penalty decision should be enunciated… the basis for its decision; and

That is just as many factors to consider as the Douglas Factors. But the absurdity of dropping the Douglas Factors does not stop there.  Other courts have added additional factors.

• was a chance at rehabilitation offered prior to removal;
• did the penalty exceeds the range of permissible punishments for the offense under the applicable statute or regulation;
• the level of the job, the connection between the job and the improper conduct charges, and the deterrent effect of the penalty; and
• years of satisfactory government service.

That not only means agencies will have to consider more factors than the current Douglas criteria, but they will also have to do it without the decades of MSPB case law clarifying, detailing and applying any ambiguities in the factors.

From where I sit there is no good reason to abandon the obligation to always consider the Douglas Factors when imposing a discipline penalty.

The Trump Toadies at the MSPB have done something to appease the Mango Manipulator, but they have not done anything that will make it easier to take disciplinary actions.