Appealed from: Merit Systems Protection Board
RICH, Circuit Judge, NICHOLS, Senior Circuit Judge, and NEWMAN, Circuit Judge.
This appeal is from the final decision of the Merit Systems Protection Board (board), case No. AT07528210516, sustaining the Tennessee Valley Authority (TVA) action removing petitioner from his position as a Heavy Equipment Operator. The final order of the full board modified the presiding official's decision of May 21, 1982, which mitigated the removal to a thirty (30) day suspension. We reverse the decision of the full board and order that the presiding official's decision be reinstated.
Petitioner Bobby Mitchum (Mitchum) had been employed as one of twenty-seven heavy equipment operators at TVA's Cumberland Steam Plant for thirteen years. His duties included operating equipment such as tugboats, cranes, bull-dozers, and a large loading device commonly called a "panscraper" or the "Wabco." Work assignments were made orally by foreman Fred Dodson (Dodson) when the operators gathered at the start of the shift at 7:30 each morning.
On November 13, 1981, foreman Dodson instructed Mitchum to operate the Wabco for the day. Mitchum first refused the assignment. Dodson then conferred with his immediate supervisor, N. J. Lewis (Lewis), who instructed him to make the Wabco assignment again in front of witnesses. When Dodson made the work assignment a second time, Mitchum again refused it and requested to be put on sick leave.
Mitchum was then instructed to report to the nurse's clinic for an examination, then to Lewis' office. At the nurse's office Mitchum complained of vomiting and was found to have a temperature of 99.4 degrees. He reported to Lewis' office after seeing the nurse, but indicated that he felt too sick to wait to see him.
Mitchum then left the plant and went directly to the office of a private physician, Dr. Douglas W. Ligon. Dr. Ligon found that Mitchum "had vomiting on several occasions while in the clinic, was treated with medications, given an injection and advised to return to his home two days at bed rest." The doctor also said that Mitchum was "quite ill today and unable to work Friday and Saturday, possibly Sunday due to illness."
On December 3, 1981, the agency advised Mitchum of its intention to remove him from employment for twice refusing to operate the Wabco on November 13 and for leaving the plant before obtaining the approval of his supervisor. The December 3 advance notice also advised him that if the facts forming the basis of the current charges were sustained, two other incidents in which petitioner had refused to perform assigned tasks would be considered in determining his penalty. On December 21, 1981, the specifications contained in the advance notice were sustained, and petitioner was informed that he would be removed from the service, effective January 5, 1982.
Mitchum appealed the agency's decision to the Atlanta Regional Office of the board. The presiding official found that the TVA did prove the charge against Mitchum, that the work assignments were properly made, and that Mitchum refused the assignment. The presiding official also found that "while there is evidence that the appellant was sick on the day in question, the preponderance of the evidence suggests that the appellant refused the work assignment before any mention of his being incapacitated." However, in light of the evidence indicating Mitchum's incapacity to perform the work assignment that day, the presiding official ordered that the TVA's action be modified, and that a thirty (30) day suspension be substituted in lieu of the removal.
March 22, 1984, on appeal by the TVA, the full board modified the decision of the presiding official and reinstated the TVA action removing Mitchum from his position. In making its decision, the board considered Mitchum's "past disciplinary record for insubordination" and found that removal was a reasonable penalty under the circumstances, "[e]ven though there is some evidence that appellant may have been ill at the time of the currently charged incident."
The Civil Service Reform Act of 1978 (Reform Act), Pub.L. No. 95-454, 92 Stat. 1111 (1978) and the board's regulations require an agency to prove the reasons for removal by a preponderance of the evidence. 5 U.S.C. 7701(c) and 5 C.F.R. 1201.56(a)(1). Under §§ 7513 and 7701, the agency must also prove by a preponderance of the evidence that the adverse action was taken "for such cause as will promote the efficiency of the service," and that the disciplinary sanction imposed in the particular case at issue was properly selected for reasons relevant to the promotion of efficiency of the service. Douglas v. Veterans Administration, 5 MSPB 313, 333-34, 5 M.S.P.R. 280 (1981).
Douglas also requires the presiding official to make a separate finding on the appropriateness of the penalty imposed in connection with an adverse action, and suggests a list of factors which might be considered in reaching such a determination. Among these factors are the nature and seriousness of the offense; the employee's job level and type of employment; the employee's past work record, including level and type of employment; the employee's past disciplinary record; the employees 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 supervisors' confidence in the employee's ability to perform assigned duties; 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 ...