DEPARTMENT OF HEALTH & HUMAN SERVICES

Public Health Service
Centers for Disease Control
and Prevention (CDC)

Memorandum
Date:

July l, 2019

From:

Center Director, National Center for Environmental Health (NCEH)

To:

George Luber, Supervisory Health Scientist, Asthma and Community Health Branch (ACHB),
Division of Environmental Health Science and Practice (DEHSP), NCEH

Subject:

Proposal to Suspend

This is notice that I am proposing to suspend you for 120 calendar days from your position as a Supervisory
Health Scientist, GS-601-15, in the Asthma and Community Health Branch, Division of Environmental Health
Science and Practice, National Center for Environmental Health. I am proposing this action under the provisions
of 5 C.F.R. Part 752 to promote the efficiency of the service. The proposed action will be effective no earlier than
30 calendar days after issuance of this memorandum. This proposal is based on the following charges:
CHARGE 1: ABSENCE WITHOUT LEA VE
Specification 1: On September 10, 2015, between 2:00 PM and 4:30 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 2: On October 6, 2016, between 2:00 PM and 4:30 PM, you were absent, without authority, from
your required duty station; you were required to be at your duty station during that period. Your absence was not
authorized and you did not request leave for that period.
Specification 3: On August 24, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority, from
your required duty station; you were required to be at your duty station during that period. Your absence was not
authorized and you did not request leave for that period.
Specification 4: On September 7, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 5: On October 12, 2017, between 2:00 PM and 4:30 PM, you were absent, without authority, from
your required duty station; you were required to be at your duty station during that period. Your absence was not
authorized and you did not request leave for that period.
Specification 6: On October 19, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority, from
your required duty station; you were required to be at your duty station during that period. Your absence was not
authorized and you did not request leave for that period.
Specification 7: On October 26, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority, from
your required duty station; you were required to be at your duty station during that period. Your absence was not
authorized and you did not request leave for that period.

 Proposal to Suspend - George Luber

2

Specification 8: On November 2, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 9: On November 9, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 10: On November 16, 2017, between 3:00 PM and 4:30 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 11: On January 16, 2018, between 10:00 AM andl2:00 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 12: On January 23, 2018, between 10:00 AM andl2:00 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 13: On January 30, 2018, between 10:00 AM andl2:00 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 14: On February 13, 2018, between 10:00 AM and12:00 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
Specification 15: On February 20, 2018, between 10:00 AM andl2:00 PM, you were absent, without authority,
from your required duty station; you were required to be at your duty station during that period. Your absence
was not authorized and you did not request leave for that period.
CHARGE 2: SUBMITTING TIME/ATTENDANCE RECORDS WITH INACCURATE INFORMATION
Specification 1: On September 19, 2015, you verified your time and attendance record in T AS Net, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on September 10, 2015.
Your verification was incorrect in that you only performed 5.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 2: On October 15, 2016, you verified your time and attendance record in TA SNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on October 6, 2016. Your
verification was incorrect in that you only performed 5.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TA SNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 3: On September 2, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on August 24, 2017. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 4: On September 16, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on September 7, 2017. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires

 Proposal to Suspend - George Luber

3

employees to accurately verify their time and attendance in T ASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 5: On October 14, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on October 12, 20 17. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 6: On October 28, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on October 19, 2017. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 7: On October 28, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on October 26, 2017. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 8: On November 11, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on November 2, 2017. Your
verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 9: On November 11, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on November 9, 2017. Your
verification was incorrect in that you only perfonned 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 10: On November 25, 2017, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on November 16, 2017.
Your verification was incorrect in that you only performed 6.5 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in T ASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 11: On January 20, 2018, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on January 16, 2018. Your
verification was incorrect in that you only performed 6 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 12: On February 3, 2018, you verified your time and attendance record in T ASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on January 23, 2018. Your
verification was incorrect in that you only performed 6 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TA SNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 13: On February 3, 2018, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on January 30, 2018. Your
verification was incorrect in that you only performed 6 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TA SNet. You knew or should have known of the

 Proposal to Suspend - George Luber

4

Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 14: On February 17, 2018, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on February 13, 2018. Your
verification was incorrect in that you only performed 6 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in TASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
Specification 15: On March 3, 2018, you verified your time and attendance record in TASNet, the CDC's
electronic time and attendance system, indicating that you performed 8 hours of duty on February 20, 2018. Your
verification was incorrect in that you only performed 6 hours of duty on that date. Agency policy requires
employees to accurately verify their time and attendance in T ASNet. You knew or should have known of the
Agency's policy. Your action as described above constitutes a violation of the policy.
CHARGE 3: FAILURE TO OBTAIN PRIOR APPROVAL TO ENGAGE IN OUTSIDE
EMPLOYMENT/ACTIVITIES
Specification 1: The Department of Health and Human Services, through 5 C.F.R. § 5501.106(d), requires that
an employee obtain written approval from his/her supervisor prior to engaging, with or without compensation, in
outside employment, including engaging in teaching, speaking, writing, or editing that relates to the employee's
official duties. Being aware of that requirement, you nonetheless fai led to obtain written approval prior to
engaging in your work as co-author of a book entitled Global Climate Change and Human Health: From Science
to Practice between June 6, 2013, and its publication date in September 2015.
Specification 2: The Department of Health and Human Services, through 5 C.F.R. § 5501.106(d), requires that
an employee obtain written approval from his/her supervisor prior to engaging, with or without compensation, in
outside employment, including engaging in teaching, speaking, writing, or editing that relates to the employee's
official duties. Being aware of that requirement, you nonetheless failed to obtain written approval prior to
engaging in your work as co-author of a chapter of a book entitled Foundations ofGlobal Health between
July 22, 2016, and its publication date on March 2, 2018.
Specification 3: The Department of Health and Human Services, through 5 C.F .R. §5501.106(d), requires that an
employee obtain written approval from his/her supervisor prior to engaging, with or without compensation, in
outside employment, including engaging in teaching, speaking, writing, or editing that relates to the employee's
official duties. Being aware of that requirement, you nonetheless failed to obtain written approval prior to your
work as an instructor for Emory University's "Advanced Seminar in Climate Change and Health: Research and
Policy" between January 15, 2018, and April 30, 2018.
CHARGE 4: MISUSE OF POSITTON - CREATING THE APPEARANCE OF A CONFLICT OF
INTEREST
Specification 1: Between in or about August 2014 and in or about December 2014, you asked and encouraged
Dr. Kathryn Conlon to be a guest lecturer at Emory University's Class HLTH 350, "Core Issues in Global
Health." At the time of your request, you were the Chief of the CDC's Climate and Health Program and were
supervising Dr. Conlon, a Postdoctoral Fellow, in that capacity. Additionally, at the time of your request, you
were working in a nongovernmental capacity as a paid instructor for the course. Dr. Conlon's appearance as a
guest lecturer at the course was not required for the performance of her official duties or authorized in accordance
with law or regulation. Your actions reasonably created the appearance of a conflict of interest.
Specification 2: In or about October 2017, you asked and encouraged Dr. Shubhayu Saha to be a guest lecturer
at Emory University's Class HLTH 350R-1, "Core Issues in Global Health." At the time of your request, you
were the Chief of the CDC's Climate and Health Program and were supervising Dr. Saha. a Senior Service
Fellow, in that capacity. Additionally, at the time of your request, you were working in a nongovernmental
capacity as a paid instructor for the course. Dr. Saha's appearance as a guest lecturer at the course was not
required for the performance of his official duties or authorized in accordance with law or regulation. Your

 Proposal to Suspend - George Luber

5

actions reasonably created the appearance of a conflict of interest.
Specification 3: In or about March 2018, you asked and encouraged Dr. Kathryn Conlon to be a guest lecturer at
Emory University's Rollins School of Public Health, Class EH 586, "Advanced Seminar in Climate Change and
Health: Research and Policy." At the time of your request, you were the Chief of the CDC's Climate and Health
Program and were supervising Dr. Conlon, a Postdoctoral Fellow, in that capacity. Additionally, at the time of
your request, you were working in a nongovernmental capacity as a paid instructor for the course. Dr. Conlon's
appearance as a guest lecturer at the course was not required for the perfonnance of her official duties or
authorized in accordance with law or regulation. Your actions reasonably created the appearance of a conflict of
interest.
CHARGE 5: MISUSE OF OFFICIAL TIME
Specification 1: In or about 2017, you asked and encouraged Dr. Kathryn Conlon to use official time to develop
materials and produce a syllabus for a Yale University course to be entitled "Climate Adaptation." At the time of
your request, you were the Chief of the CDC's Climate and Health Program and were supervising Dr. Conlon, a
Postdoctoral Fellow, in that capacity. Dr. Conlon's work on the course was not required for the performance of
her official duties or authorized in accordance with law or regulation. Your conduct violated 5 C.F .R.
§ 2635.705(b).
Specification 2: Between in or about 2016 and in or about 2017, you asked and encouraged Stasia Widerynski to
use official time to work on a chapter of a book entitled Foundations ofGlobal Health. At the time of your
request, you were the Chief of the CDC's Climate and Health Program and were supervising Ms. Widerynski, an
Oak Ridge Institute for Science and Education Fellow, in that capacity. Ms. Widerynski's work on the book was
not required for the perfonnance of her official duties or authorized in accordance with law or regulation. Your
conduct violated 5 C ..F.R. § 2635.705(b).
A listing of the Douglas factors I considered in proposing the suspension is attached. The evidence file and the
Douglas factor listing will be forwarded with this letter to the deciding official for her consideration.

You have the right to answer this notice in person (orally), in writing, or both, and may submit affidavits and
other documentary evidence in support of your answer. Your written reply should be directed to Ms. Shaunette
Crawford, Executive Officer, Centers for Disease Control and Prevention (CDC), 1600 Clifton Road, Building 21,
Room I 1302, Mailstop H21 - l l, Atlanta, Georgia 30329, or her designee, who will serve as the deciding official
in this matter. Should you desire to answer in person, contact Ms. Crawford's office, telephone number (404)
639-7186, to arrange a meeting. You will be allowed 15 calendar days from the date you receive this notice to
submit your answer. Consideration will be given to any answer you submit. As soon as possible after your
answer is received, or after the expiration of the 15-day reply period if you do not answer, you will be given a
written decision.
You have the right to reply to this notice, and to submit affidavits in support of your reply, showing why this
notice is inaccurate and any other reasons why your proposed suspension should not be effected.
You have the right to be accompanied, represented, and advised by an attorney, at your own expense, or other
representative of your choice. However, we may disallow as your representative, an individual whose activities as
a representative would cause a conflict of interest or position, an employee who cannot be released from his or her
official duties because of the priority needs of the government, or an employee whose release would give to
unreasonable costs to the government. If you choose someone to represent you, you must provide that person' s
name, address, and telephone number to Ms. Crawford in writing, providing your authorization for your
representative to have access to your official personnel records and other documents relevant to the proposed
action.
You will be allowed four ( 4) hours of official time, if otherwise in an active duty status, to review the materials

 Proposal to Suspend - George Luber

6

relied on to support this proposal, to secure affidavits, and to prepare an answer to this notice. Additional official
time may be granted if necessary. You should arrange with your immediate supervisor for the use of official time.
CDC/ATSDR has a variety of resources available to assist employees who may be experiencing personal and
work-related difficulties. If you have not been in contact with a consultant from one or more of these resources,
you are encouraged to do so. Consults are free and completely confidential. Among the resources are: the
Employee Assistance Program (EAP) which offers confidential counseling services to help address difficult
situations that may be affecting work, personal or family interactions. Here is the contact information based on
your location:
Atlanta employees: Email: eap@cdc.gov
Referral website www.worklife4you.com (Registration code "CDC")
• Roybal ( 404) 639-2830; M - F, 8:00 am - 4:30 pm EST, and after hours call (800) 222-0364
• Chamblee (770) 488-7825 M - F, 8:00 am - 4:30 pm EST, and after hours call (800) 222-0364
Worklife4you is our "referral" resource provider for CDC. The Worklife4you program's trained specialist and
website can answer questions and provide information for a wide variety of services and resources on topics such
as family, health, education, work, finance, legal matters, and more. Services are available to employees and their
dependents 24 hours a day/7 days a week and may be accessed at www.worklife4you.com (registration code is
"CDC") or via telephone at 800-222-0364. Registration is required to access the resources on the website. For
first-time users, click "start now" where is says, "not registered yet" and follow the instructions.
Another resource that is available to you is Reasonable Accommodation (RA). An RA as defined in the Policy for
Processing Requests for Reasonable Accommodation, CDC-GA-2001-06, is any change in the work environment
that would enable an individual with a disability to enjoy equal employment opportunities. Please contact the
EEO office for further information on how to request a reasonable accommodation.
The materials relied upon to support the proposed action is on file in the Human Resources Office, CDC. Should
you desire to review this material, or if you have any questions about the regulations or procedures applicable to
this proposal, you may contact Dwayne Radcliffe, Human Resources Specialist, at 404-718-7655.

Patrick N. Breysse

~l1l1'\

Please acknowledge receipt of this memorandum by affixing your signature and today's date below and return the
signed document to your supervisor. Failure to sign does not void the content of this letter.

I acknowledge receipt of this memorandum:

/~
Geor~er

Date

 Douglas Factor Evaluation Checklist
Charge I: Absence Without Leave

_ _ Douglas Factor 1 - Seriousness of Offense
a. How does the charged conduct affect the agency's operations and/or mission?
b. Was the action intentional/deliberate or inadvertent? Explain.
c. Was it an isolated incident or was conduct repeated? Explain.
d. Did the employee gain anything from the conduct? What?
Absence Without Leave (AWOL) may form the basis upon which disciplinary action
may be taken. Dr. Luber was AWOL for a total of 15 instances. The AWOL instances
were repeated during a span of over 2 years, with increasing frequency in later years. Dr.
Luber's AWOL resulted in his being able to teach university courses (for which he was
paid by the university) during duty hours without using his accrued leave to account for
his absences. As a result, Dr. Luber's leave balance incorrectly reflected that he had more
accrued leave than he should have had, which obligated the Agency to afford him leave
to which he was not entitled. The record reflects that Dr. Luber was well-aware of the
need to take leave to teach his university classes during duty hours prior to the charged
A WO Ls. His failure to do so was, at best, negligent on his part, and at worst, deliberate.

_ _ Douglas Factor 2 - Job Level and Type of Employment
Is the employee a supervisor/manager?
b. Does the person occupy a position trust? How does the employee's charged conduct relate to
his/her position of trust?
c. Does the employee occupy a position of prominence? Explain.
Dr. Luber was assigned to a Supervisory Health Scientist, GS-0601-15 position; a firstline supervisor, responsible for the supervision of over 10 people, and he managed a
budget of approx. $10 million. He was wholly responsible for contract decisions,
cooperative agreement and grants, hiring, approving travel and training opportunities. As
Director of the Climate and Health Program affiliated with the CDC, Dr. Luber was
highly sought after for presentations, collaborations, and speaking engagements. As a GS
601 -15, Dr. Luber was at the highest level of government employment, he had frequent
contact with the public through speeches and speaking engagements, he had teaching
opportunities, and he made funding decisions on cooperative agreements and grants to
state, local and tribal health departments. Dr. Luber is well-known in the Climate and
Health field, and he is highly recognized as an expert in this field. He occupied a position
of great responsibility and trust; his supervisors relied on him to request leave to engage
in outside activities without a great deal of oversight.

 Douglas Factor Evaluation Checklist
Charge 1: Absence Without Leave

_ _ Douglas Factor 3 - Prior Misconduct
a. Does the employee have a prior disciplinary record? What for? When?
b. Is the prior discipline for similar conduct as the current charge(s)? Explain.
c. Is the discipline a matter of record?
d. Is it time-barred, i.e. reprimand over 2 years, contract article?
e. Is the prior discipline still being challenged? Explain.
There are no past disciplinary or adverse actions taken against Dr. Luber while employed
at CDC.

_ _ Douglas Factor 4 - Employee's Past Work Record
a. Length of service?
b. Prior work record? What do appraisals say?
c. Ability to get along with others?
d. Dependability?
Dr. Luber has served at the CDC (initially as a Commissioned Corps Officer and then as
a Civil Service employee) since July 1, 2002. He has been rated as "Achieved More than
Expected Results" to "Achieved Outstanding Results" on his annual appraisals from 2009
to the present. Recent inquiries into Dr. Luber' s interactions with CDC staff reveal he
does not get along well with many employees, including women and subordinates. In
particular, it has been reported that he has made derogatory comments about women to
the staff, disparaged employees in the presence of others, and generally engaged in
abusive conduct toward subordinates. His dependability, particularly with regard to
requesting leave when required, is questionable.

_ _ Douglas Factor 5 - Erosion of Supervisory Confidence
a. Is there a loss of trust and confidence? Explain without vague conclusions.
b. How do job duties relate to a loss of trust and confidence?
Center management is not confident that Dr. Luber will consistently request leave when
he engages in outside activities during duty hours. Center management has also indicated
that Dr. Luber has lost the confidence of those he leads; e.g., not adhering to the rules
(time and attendance) that those he leads must follow. This loss of trust in such a senior
employee is significant. The Agency should be able to rely on an official of Dr. Luber's
stature and experience to always request leave when required to do so without
supervisory oversight.
2

 Douglas Factor Evaluation Checklist
Charge 1: Absence Without Leave

_ _ Douglas Factor 6 - Consistency of Penalty
Is the penalty consistent with that imposed for other employees for similar charges? If not, why?
The Agency has not had the occasion to propose discipline in a case involving all five
charges as in the subject case. Management has proposed suspensions that have ranged
from 1-5 days for AWOL instances of less than 15 occasions. Prior to the proposal of a
suspension in other cases, management formally counseled employees, then
progressively increased the penalty for subsequent AWOL instances.

_ _ Douglas Factor 7 - Consistency of Penalty with Table of Penalties
a. Is the charged conduct listed in the Table of Penalties?
b. If not, what offense is most similar?
c. Is the proposal penalty within the range identified in table? If not, why?
The CDC Guide for Disciplinary Penalties, derived from HHS Instruction 752, Discipline
and Adverse Action, states that a suspension of 1 to 14 days is warranted for a first
offense of AWOL involving absence of more than 8 hours but less than 5 workdays. The
proposed penalty exceeds the range set forth in the Guide for Disciplinary Penalties
because it is based on a consideration of all five charges together.

_ _ Douglas Factor 8 - Notoriety
a. Any publicity regarding conduct? What type? Explain.
b. Any complaints, concerns registered by customers, public, etc.?
Dr. Luber' s alleged misconduct only has a measure of notoriety and public interest
because of his own contacts with the press regarding his case, which resulted in a
Washington Post article entitled "The administration tried to muzzle this scientist on
climate change. But he won't go away," which was posted on the newspaper's website on
May 22, 2019. Dr. Luber' s A WO Ls did not result in any complaints or concerns lodged
by customers or the public.

3

 Douglas Factor Evaluation Checklist
Charge I: Absence Without Leave

_ _ Douglas Factor 9 - Notice of Warning about Conduct
a. Any non-disciplinary counseling documented? Copies given to employee?
b. Any briefings/training involving charged violation?
c. Any general Standards of Conduct briefings? When?
d. Any letter of expectations provided to the employee about conduct?
Dr. Luber is a senior federal employee of long standing. He knew, or reasonably should
have known, that he is required to adhere to time and attendance rules, policies, and
procedures including the requirement to request leave, in advance, from the appropriate
leave-approving official, before absenting himself from his workplace during duty hours.
He knew, as a result of past notices of approval to engage in outside activities (beginning
at least as early as 2012), that he must be on approved leave in order to engage in such
activities during normal duty hours.

__ Douglas Factor 10 - Potential for Rehabilitation
a. Early truthful admission?
b. Remorsefulness/contrition?
c. Getting assistance with the problem?
d. Reporting of Misconduct before investigation?
It appears that Dr. Luber's disregard for rules and regulations pertaining to time and
attendance increased over time. As a result, he has lost the confidence of management
that he can be trusted, on his own, to request leave as appropriate for outside activities.
Dr. Luber does, however, possess scientific expertise that is of great value to the CDC.
He is an employee with about 17 years of otherwise good service. If removed from a
supervisory position and placed under the strict scrutiny of senior managers, Dr. Luber
may have the potential to conform his behavior to Agency standards.

_ _ Douglas Factor 11 - Mitigating Circumstances
a. Personal Problems?
b. Emotional distress?
c. Medical condition?
d. Unusual Job tensions?
e. Malice or provocation by others?
Potential mitigating circumstances include the fact that Dr. Luber has been employed
with the CDC for sixteen years, with no prior disciplinary record and ratings of
4

 Douglas Factor Evaluation Checklist
Charge I: Absence Without Leave

"Achieved More than Expected Results" to "Achieved Outstanding Results." Dr. Luber
suffered a heart attack on Saturday, September 9, 2017. He was on sick leave from
September 11, 2017 through October 3, 2017.

_ _ Douglas Factor 12 - Effectiveness of a Lesser/Alternative Sanction
a. If removal, why not lesser sanction?
b. Did you consider other alternative sanctions? If not, why? If so, why did you not mitigate?
Taken as an individual charge, alternative sanctions might deter the Dr. Luber from
engaging in future AWOLs. However, when taken in its totality (with the four other
charges) it is management's opinion, based on the facts, that the proposed 120-day
suspension is warranted.

I hereby certify that I have considered the twelve (12) Douglas factors as indicated above (with
my initial next to each factor) in making my penalty determination.

5

 Douglas Factor Evaluation Checklist
Charge 2: Submitting TIA Records with Inaccurate Information

_ _ Douglas Factor 1 - Seriousness of Offense
a. How does the charged conduct affect the agency's operations and/or mission?
8. Was the action intentional/deliberate or inadvertent? Explain.
C. Was it an isolated incident or was conduct repeated? Explain.
d. Did the employee gain anything from the conduct? What?
Submitting TIA Records with Inaccurate Information may form the basis upon which
disciplinary action may be taken. Dr. Luber's TASNet verifications on 12 occasions,
from 2015-2018, were incorrect in that they failed to account for 15 absences from duty
during which he taught university courses (for which he was paid by the university). As a
result, Dr. Luber was able to avoid having to use annual leave or being placed in an
unpaid leave status on those 15 occasions. His failure to accurately reflect his absences
on his TASNet verifications led to the Agency paying him for those absence periods and
allowed him to maintain a leave balance that incorrectly reflected that he had more
accrued leave than he should have had. The record reflects that Dr. Luber was well-aware
of the need to accurately report absences in his TASNet verifications. His failure to do so
was, at best, negligent on his part and, at worst, deliberate (which is highly likely given
that many of the incorrect TASNet verifications occurred in 2018 while Dr. Luber was
teaching a university course for which he had not requested and received approval to do).

__ Douglas Factor 2 - Job Level and Type of Employment
Is the employee a supervisor/manager?
b. Does the person occupy a position trust? How does the employee's charged conduct relate to
his/her position of trust?
c. Does the employee occupy a position of prominence? Explain.
Dr. Luber was assigned to a Supervisory Health Scientist, GS-0601 -15 position; a firstline supervisor, responsible for the supervision of over 10 people, and he managed a
budget of approx. $ 10 million. He was wholly responsible for contract decisions,
cooperative agreement and grants, hiring, approving travel and training opportunities. As
Director of the Climate and Health Program affiliated with the CDC, Dr. Luber was
highly sought after for presentations, collaborations, and speaking engagements. As a GS
601-15, Dr. Luber was at the highest level of government employment, he had frequent
contact with the public through speeches and speaking engagements, he had teaching
opportunities, and he made funding decisions on cooperative agreements and grants to
state, local and tribal health departments. Dr. Luber is well-known in the Climate and
Health field, and he is highly recognized as an expert in this field. He occupied a position

 Douglas Factor Evaluation Checklist
Charge 2: Submitting TIA Records with Inaccurate Information
of great responsibility and trust; his supervisors relied on him to accurately report his
absences on his TASNet verifications without a great deal of oversight.

_ _ Douglas Factor 3 - Prior Misconduct
a. Does the employee have a prior disciplinary record? What for? When?
b. Is the prior discipline for similar conduct as the current charge(s)? Explain.
c. Is the discipline a matter of record?
d. Is it time-barred, i.e. reprimand over 2 years, contract article?
e. Is the prior discipline still being challenged? Explain.
There are no past disciplinary or adverse actions taken against Dr. Luber while employed
at CDC.

_ _ Douglas Factor 4 - Employee's Past Work Record
a. Length of service?
b. Prior work record? What do appraisals say?
c. Ability to get along with others?
d. Dependability?
Dr. Luber has served at the CDC (initially as a Commissioned Corps Officer and then as
a Civil Service employee) since July 1, 2002. He has been rated as "Achieved More than
Expected Results" to "Achieved Outstanding Results" on his annual appraisals from 2009
to the present. Recent inquiries into Dr. Luber's interactions with CDC staff reveal he
does not get along well with many employees, including women and subordinates. In
particular, it has been reported that he has made derogatory comments about women to
the staff, disparaged employees in the presence of others, and generally engaged in
abusive conduct toward subordinates. His dependability, particularly with regard to
documenting leave in TASNet, is questionable.

_ _ Douglas Factor 5 - Erosion of Supervisory Confidence
a. Is there a loss of trust and confidence? Explain without vague conclusions.
b. How do job duties relate to a loss of trust and confidence?
Center management is not confident that Dr. Luber will consistently record his absences
in T ASNet when he engages in outside activities during duty hours. Center management
has also indicated that Dr. Luber has lost the confidence of those he leads; e.g., not
adhering to the rules (time and attendance) that those he leads must also follow. These
2

 Douglas Factor Evaluation Checklist
Charge 2: Submitting TIA Records with Inaccurate Information
repeated and frequent false time verifications have thereby eroded the confidence that
Center leadership has in Luber's ability to lead and to be a respected leader among his
peers and staff. This loss of trust in such a senior employee is significant. The Agency
should be able to rely on an official of Dr. Luber's stature and experience to always
accurately reflect his absences in TASNet without supervisory oversight.

_ _ Douglas Factor 6 - Consistency of Penalty
Is the penalty consistent with that imposed for other employees for similar charges? If not, why?
The Agency has not had the occasion to propose discipline in a case involving all five
charges as in the subject case.

_ _ Douglas Factor 7 - Consistency of Penalty with Table of Penalties
a. Is the charged conduct listed in the Table of Penalties?
b. If not, what offense is most similar?
c. Is the proposal penalty within the range identified in table? If not, why?
The CDC Guide for Disciplinary Penalties, derived from HHS Instruction 752, Discipline
and Adverse Action, states that a letter of reprimand to a removal is warranted for this
charge for a first offense. Therefore, the proposed penalty is within the range identified in
the CDC Guide.

_ _ Douglas Factor 8 - Notoriety
a. Any publicity regarding conduct? What type? Explain.
b. Any complaints, concerns registered by customers, public, etc.?
Dr. Luber's alleged misconduct only has a measure of notoriety and public interest
because of his own contacts with the press regarding his case, which resulted in a
Washington Post article entitled "The administration tried to muzzle this scientist on
climate change. But he won't go away,'' which was posted on the newspaper's website on
May 22, 2019. Dr. Luber' s submission of time and attendance records with inaccurate
information did not result in complaints or concerns lodged by customers or the public.

_ _ Douglas Factor 9 - Notice of Warning about Conduct
a. Any non-disciplinary counseling documented? Copies given to employee?
b. Any briefings/training involving charged violation?
3

 Douglas Factor Evaluation Checklist
Charge 2: Submitting TIA Records with Inaccurate Information
c. Any general Standards of Conduct briefings? When?
d. Any letter of expectations provided to the employee about conduct?
Dr. Luber is a senior federal employee of long standing. He knew, as a result of past
notices of approval to engage in outside activities (beginning at least as early as 2012),
that he must be on approved leave in order to engage in such activities during normal
duty hours. Further, he knew, or reasonably should have known, given his extensive
experience as a Civil Service employee, that he is required to accurately verify such
absences from the workplace during duty hours in TASNet.

__ Douglas Factor 10 - Potential for Rehabilitation
a. Early truthful admission?
b. Remorsefulness/contrition?
c. Getting assistance with the problem?
d. Reporting of Misconduct before investigation?
It appears that Dr. Luber' s disregard for rules and regulations pertaining to time and
attendance reporting increased over time. As a result, he has lost the confidence of
management that he can be trusted, on his own, to report leave, as appropriate, for outside
activities. Dr. Luber does, however, possess scientific expertise that is of great value to
the CDC. He is an employee with about 17 years of otherwise good service. If removed
from a supervisory position and placed under the strict scrutiny of senior managers, Dr.
Luber may have the potential to conform his behavior to Agency standards.

_ _ Douglas Factor 11 - Mitigating Circumstances
a. Personal Problems?
b. Emotional distress?
c. Medical condition?
d. Unusual Job tensions?
e. Malice or provocation by others?
Potential mitigating circumstances include the fact that Dr. Luber has been employed
with the CDC for sixteen years, with no prior disciplinary record and ratings of
"Achieved More than Expected Results" to "Achieved Outstanding Results." Dr. Luber
suffered a heart attack on Saturday, September 9, 2017. He was on sick leave from
September 11, 2017 through October 3, 2017.
4

 Douglas Factor Evaluation Checklist
Charge 2: Submitting TIA Records with Inaccurate Information

_ _ Douglas Factor 12 - Effectiveness of a Lesser/Alternative Sanction
a. If removal, why not lesser sanction?
b. Did you consider other alternative sanctions? If not, why? If so, why did you not mitigate?
Taken as an individual charge, alternative sanctions might deter Dr. Luber from engaging
in future inaccurate TASNet submissions. However, when taken in its totality (with the
four other charges) it is management's opinion, based on the facts, that the proposed 120day suspension is warranted.

I hereby certify that I have considered the twelve (12) Douglas factors as indicated above (with
my initial next to each factor) in making my penalty determination.

5

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities

_ _ Douglas Factor 1 - Seriousness of Offense
a. How does the charged conduct affect the agency's operations and/or mission?
b. Was the action intentional/deliberate or inadvertent? Explain.
c. Was it an isolated incident or was conduct repeated? Explain.
d. Did the employee gain anything from the conduct? What?
Ethics violations may form the basis upon which disciplinary action may be taken. CDC
employees must maintain the public's trust by complying with government-wide ethical
statutes, regulations, and standards. HHS and Office of Government Ethics (OGE)
requirements and procedures are in place to ensure such compliance. Dr. Luber was
aware of the ethics requirement to obtain written approval prior to engaging in certain
outside activities (e.g., teaching, speaking, writing, and editing on matters relating to his
official duties) as early as 2012 as a result of his going through the approval process at
that time. In spite of that, he improperly failed to comply with that requirement on three
occasions; therefore, this conduct does not appear to have been isolated. His failure to
comply with the ethics requirement denied the Agency the opportunity to ascertain
whether the proposed activities posed a risk of ethical violation. Dr. Luber's failure to
obtain prior written approval for the three outside activities was, at best, negligent on his
part and at worst, deliberate. His outside activity as a university course instructor resulted
in financial gain to him.

_ _ Douglas Factor 2 - Job Level and Type ofEmployment
Is the employee a supervisor/manager?
b. Does the person occupy a position trust? How does the employee's charged conduct relate to
his/her position of trust?
c. Does the employee occupy a position of prominence? Explain.
Dr. Luber was assigned to a Supervisory Health Scientist, GS-0601-15 position; a firstline supervisor, responsible for the supervision of over 10 people, and he managed a
budget of approx. $10 million. He was wholly responsible for contract decisions,
cooperative agreement and grants, hiring, approving travel and training opportunities. As
Director of the Climate and Health Program affiliated with the CDC, Dr. Luber was
highly sought after for presentations, collaborations, and speaking engagements. As a GS
601-15, Dr. Luber was at the highest level of government employment, he had frequent
contact with the public through speeches and speaking engagements, he had teaching
opportunities, and he made funding decisions on cooperative agreements and grants to
state, local and tribal health departments. Dr. Luber is well-known in the Climate and

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities
Health field, and he is highly recognized as an expert in this field. He occupied a position
of great responsibility and trust; his supervisors relied on him to comply with all ethical
rules pertaining to outside activities.

_ _ Douglas Factor 3 - Prior Misconduct
a. Does the employee have a prior disciplinary record? What for? When?
b. Is the prior discipline for similar conduct as the current charge(s)? Explain.
c. ls the discipline a matter of record?
d. Is it time-barred, i.e. reprimand over 2 years, contract article?
e. Is the prior discipline still being challenged? Explain.
There are no past disciplinary or adverse actions taken against Dr. Luber while employed
at CDC.

_ _ Douglas Factor 4 - Employee's Past Work Record
a. Length of service?
b. Prior work record? What do appraisals say?
c. Ability to get along with others?
d. Dependability?
Dr. Luber has served at the CDC (initially as a Commissioned Corps Officer and then as
a Civil Service employee) since July 1, 2002. He has been rated as "Achieved More than
Expected Results" to "Achieved Outstanding Results" on his annual appraisals from 2009
to the present. Recent inquiries into Dr. Luber' s interactions with CDC staff reveal he
does not get along well with many employees, including women and subordinates. In
particular, it has been reported that he has made derogatory comments about women to
the staff, disparaged employees in the presence of others, and generally engaged in
abusive conduct toward subordinates. His dependability, particularly with regard to
complying with ethical requirements for engaging in outside activities, is questionable.

_ _ Douglas Factor 5 - Erosion of Supervisory Confidence
a. Is there a loss of trust and confidence? Explain without vague conclusions.
b. How do job duties relate to a loss of trust and confidence?
Center management is not confident that Dr. Luber will consistently comply with ethics
requirements relating to engaging in outside activities. Center management has also
2

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities
indicated that Dr. Luber has lost the confidence of those he leads; e.g., not adhering to the
ethical rules that those he leads must also follow. These repeated ethical violations have
thereby eroded the confidence that Center leadership has in Luber's ability to lead and to
be a respected leader among his peers and staff. This loss of trust in such a senior
employee is significant. The Agency should be able to rely on an official of Dr. Luber's
stature and experience to always comply with ethical rules pertaining to outside activities.

_ _ Douglas Factor 6 - Consistency of Penalty
Is the penalty consistent with that imposed for other employees for similar charges? If not, why?
The Agency has not had the occasion to propose discipline in a case involving all five
charges as in the subject case.

_ _ Douglas Factor 7 - Consistency of Penalty with Table of Penalties
a. Is the charged conduct listed in the Table of Penalties?
b. If not, what offense is most similar?
c. Is the proposal penalty within the range identified in table? If not, why?
The CDC Guide for Disciplinary Penalties, derived from HHS Instruction 752, Discipline
and Adverse Action, states that a letter of reprimand to a 5-day suspension is warranted
for this charge for a first offense. The proposed penalty exceeds the range set forth in the
Guide for Disciplinary Penalties because it is based on a consideration of all five charges
together.

_ _ Douglas Factor 8 - Notoriety
a. Any publicity regarding conduct? What type? Explain.
b. Any complaints, concerns registered by customers, public, etc.?
Dr. Luber's alleged misconduct only has a measure of notoriety and public interest
because of his own contacts with the press regarding his case, which resulted in a
Washington Post article entitled "The administration tried to muzzle this scientist on
climate change. But he won't go away," which was posted on the newspaper's website on
May 22, 2019. Dr. Luber's failure to comply with the ethical requirement came to the
3

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities
attention of the CDC Ethics and Compliance Activity, which resulted in that office
conducting a review of the allegations.

__ Douglas Factor 9 - Notice of Warning about Conduct
a. Any non-disciplinary counseling documented? Copies given to employee?
b. Any briefings/training involving charged violation?
c. Any general Standards of Conduct briefings? When?
d. Any letter of expectations provided to the employee about conduct?
Dr. Luber, like all CDC employees, is required and expected to comply with HHS and OGE
ethical statutes, regulations, and standards. The Department of Health and Human Services,
through 5 C.F .R. § 550 I. I 06(d), requires that an employee obtain written approval from his/her
supervisor prior to engaging, with or without compensation, in outside employment, including
engaging in teaching, speaking, writing, or editing that relates to the employee's official duties.
5 C.F.R. § 2638. 301 provides that every agency must carry out a government ethics
education program to teach employees how to identify government ethics issues and obtain
assistance in complying with government ethics laws and regulations. An agency's failure to
comply with any of the education or notice requirements set forth in this subpart does not
exempt an employee from applicable government ethics requirements. Dr. Luber completed
Annual Ethics Training (AET) each year for 2012-2018.
HHS/OGC-Ethics Division has provided Annual Ethics Training that addresses concepts
related to the following subjects:
•
•
•
•

Financial conflicts of interest;
Impartiality;
Misuse of position; and
Gifts

The above are content requirements as required by 5 C.F.R. § 2638.307(e)(l) in addition to
government ethics laws and regulations that the Designated Agency Ethics Official (DAEO)
deems appropriate for the employees participating in the training. The following AET' s
specifically addressed outside activities, misuse of position/official time (subordinate), and/
or appearance of conflicts of interest:
•
•

2013
2014
4

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities
•
•
•

2016
2017
2018

Dr. Luber failed to seek and receive prior approval for the listed writing and teaching outside
activities. He was aware of the prior approval requirements for HHS employees as evidenced
by his submission and approval of several prior outside activity requests and continued
resubmission annually.

_ _ Douglas Factor 10 - Potential for Rehabilitation
a. Early truthful admission?
b. Remorsefulness/contrition?
c. Getting assistance with the problem?
d. Reporting of Misconduct before investigation?
Dr. Luber, despite having completed the Agency's annual ethics training and having
properly obtained permission for outside activities in the past, violated ethics
requirements on three occasions. As a result, he has lost the confidence of management
that he can be trusted, on his own, to consistently request prior approval for outside
activities. Dr. Luber does, however, possess scientific expertise that is of great value to
the CDC. He is an employee with about 17 years of otherwise good service. If removed
from a supervisory position and placed under the strict scrutiny of senior managers, Dr.
Luber may have the potential to conform his behavior to Agency standards.

__ Douglas Factor 11 - Mitigating Circumstances
a. Personal Problems?
b. Emotional distress?
c. Medical condition?
d. Unusual Job tensions?
e. Malice or provocation by others?
Potential mitigating circumstances include the fact that Dr. Luber has been employed
with the CDC for sixteen years, with no prior disciplinary record and ratings of
"Achieved More than Expected Results" to "Achieved Outstanding Results." Dr. Luber
suffered a heart attack on Saturday, September 9, 2017. He was on sick leave from
September 11, 2017 through October 3, 2017.
5

 Douglas Factor Evaluation Checklist
Charge 3: Failure to Obtain Prior Approval to Engage in Outside Employment/Activities

_ _ Douglas Factor 12 - Effectiveness of a Lesser/Alternative Sanction
a. If removal, why not lesser sanction?
b. Did you consider other alternative sanctions? If not, why? If so, why did you not mitigate?
Taken as an individual charge, alternative sanctions might deter the employee from
engaging in future failures to obtain prior ·approval of outside activities. However, when
taken in its totality (with the four other charges) it is management's opinion, based on the
facts, that the proposed 120-day suspension is warranted.

I hereby certify that I have considered the twelve (12) Douglas factors as indicated above (with my initial next

to each factor) in making my penalty determination

6

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position - Creating the Appearance of a Conflict of Interest

_ _ Douglas Factor 1 - Seriousness of Offense
a. How does the charged conduct affect the agency's operations and/or mission?
b. Was the action intentional/deliberate or inadvertent? Explain.
c. Was it an isolated incident or was conduct repeated? Explain.
d. Did the employee gain anything from the conduct? What?
Ethics violations may form the basis upon which disciplinary action may be taken. CDC
employees must maintain the public's trust by complying with government-wide ethical
statutes, regulations, and standards. Dr. Luber knew or reasonably should have known of
the ethics requirement to avoid a conflict of interest (or the appearance of the same)
caused by the misuse of his position as a result of his completion of annual ethics
training. In spite of that, he improperly asked and encouraged two subordinates of his, on
three occasions, to serve as guest lecturers during duty hours in university courses for
which he was being paid as the primary instructor by the university. In so doing, he
abused his position as a supervisor to induce his subordinates to provide him with a
benefit (i.e., the teaching of a class session by a subordinate) for which he was being
paid. At least one of the two subordinates indicated that she felt compelled to do as Dr.
Luber asked.

_ _ Douglas Factor 2 - Job Level and Type of Employment
Is the employee a supervisor/manager?
b. Does the person occupy a position trust? How does the employee's charged conduct relate to
his/her position of trust?
c. Does the employee occupy a position of prominence? Explain.
Dr. Luber was assigned to a Supervisory Health Scientist, GS-0601-15 position; a frrstline supervisor, responsible for the supervision of over 10 people, and he managed a
budget of approx. $10 million. He was wholly responsible for contract decisions,
cooperative agreement and grants, hiring, approving travel and training opportunities. As
Director of the Climate and Health Program affiliated with the CDC, Dr. Luber was
highly sought after for presentations, collaborations, and speaking engagements. As a GS
601-15, Dr. Luber was at the highest level of government employment, he had frequent
contact with the public through speeches and speaking engagements, he had teaching
opportunities, and he made funding decisions on cooperative agreements and grants to
state, local and tribal health departments. Dr. Luber is well-known in the Climate and
Health field, and he is highly recognized as an expert in this field. He occupied a position

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position - Creating the Appearance of a Conflict of Interest

of great responsibility and trust; his supervisors relied on him to use his subordinates only
in a manner that was consistent with government-wide ethical statutes, regulations, and
standards.

_ _ Douglas Factor 3 - Prior Misconduct
a. Does the employee have a prior disciplinary record? What for? When?
b. Is the prior discipline for similar conduct as the current charge(s)? Explain.
c. Is the discipline a matter of record?
d. Is it time-barred, i.e. reprimand over 2 years, contract article?
e. Is the prior discipline still being challenged? Explain.
There are no past disciplinary or adverse actions taken against Dr. Luber while employed
at CDC.

_ _ Douglas Factor 4 - Employee's Past Work Record
a. Length of service?
b. Prior work record? What do appraisals say?
c. Ability to get along with others?
d. Dependability?
Dr. Luber has served at the CDC (initially as a Commissioned Corps Officer and then as
a Civil Service employee) since July 1, 2002. He has been rated as "Achieved More than
Expected Results" to "Achieved Outstanding Results" on his annual appraisals from 2009
to the present. Recent inquiries into Dr. Luber's interactions with CDC staff reveal he
does not get along well with many employees, including women and subordinates. In
particular, it has been reported that he has made derogatory comments about women to
the staff, disparaged employees in the presence of others, and generally engaged in
abusive conduct toward subordinates. His dependability, particularly with regard to the
ethical use of his subordinates, is questionable.

2

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position - Creating the Appearance of a Conflict of Interest

_ _ Douglas Factor 5 - Erosion of Supervisory Confidence
a. Is there a loss of trust and confidence? Explain without vague conclusions.
b. How do job duties relate to a loss of trust and confidence?
Center management is not confident that Dr. Luber will consistently comply with ethics
requirements relating to the use of subordinates. Center management has also indicated
that Dr. Luber has lost the confidence of those he leads; e.g., not adhering to the ethical
rules that those he leads must also follow. These repeated ethical violations have thereby
eroded the confidence that Center leadership has in Luber's ability to lead and to be a
respected leader among his peers and staff. This loss of trust in such a senior employee is
significant - the Agency should be able to rely on an official of Dr. Luber's stature and
experience to always comply with ethical rules pertaining to the use of subordinates.

_ _ Douglas Factor 6 - Consistency of Penalty
Is the penalty consistent with that imposed for other employees for similar charges? If not, why?
The Agency has not had the occasion to propose discipline in a case involving all five
charges as in the subject case.

__ Douglas Factor 7 - Consistency of Penalty with Table of Penalties
a. Is the charged conduct listed in the Table of Penalties?
b. If not, what offense is most similar?
c. Is the proposal penalty within the range identified in table? If not, why?
The CDC Guide for Disciplinary Penalties, derived from HHS Instruction 752, Discipline
and Adverse Action, states that a letter of reprimand to a removal is warranted for this
charge for a first offense. Therefore, this penalty is within the range identified in the CDC
Guide.

__ Douglas Factor 8 - Notoriety
a. Any publicity regarding conduct? What type? Explain.
b. Any complaints, concerns registered by customers, public, etc.?
Dr. Luber's alleged misconduct only has a measure of notoriety and public interest
because of his own contacts with the press regarding his case, which resulted in a
3

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position- Creating the Appearance of a Conflict oflnterest

Washington Post article entitled "The administration tried to muzzle this scientist on
climate change. But he won't go away," which was posted on the newspaper's website on
May 22, 2019. Dr. Luber's failure to comply with the ethical requirement came to the
attention of the CDC Ethics and Compliance Activity, which resulted in that office
conducting a review of the allegations.

__ Douglas Factor 9 - Notice of Warning about Conduct
a. Any non-disciplinary counseling documented? Copies given to employee?
b. Any briefings/training involving charged violation?
c. Any general Standards of Conduct briefings? When?
d. Any letter of expectations provided to the employee about conduct?
Dr. Luber, like all CDC employees, is required and expected to comply with governmentwide ethical statutes, regulations, and standards. 5 C.F.R. § 2635.702 provides in part that
"an employee shall not use his public office for his own private gain." Subparagraph (a) of
the section states that "an employee shall not use ... his government position or title or any
authority associated with his public office in a manner that is intended to coerce or induce
another person, including a subordinate, to provide any benefit, financial or otherwise, to
himself. .. ."
5 C.F.R. § 2638. 301 provides that every agency must carry out a government ethics
education program to teach employees how to identify government ethics issues and obtain
assistance in complying with government ethics laws and regulations. An agency's failure to
comply with any of the education or notice requirements set forth in this subpart does not
exempt an employee from applicable government ethics requirements. Dr. Luber completed
Annual Ethics Training (AET) each year for 2012-2018.
HHS/OGC-Ethics Division has provided Annual Ethics Training that addresses concepts
related to the following subjects:
• Financial conflicts of interest;
• Impartiality;
• Misuse of position; and
• Gifts
The above are content requirements as required by 5 C.F.R. § 2638.307(e)(l) in addition to
government ethics laws and regulations that the Designated Agency Ethics Official (DAEO)
deems appropriate for the employees participating in the training. The following AET' s
4

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position - Creating the Appearance of a Conflict of Interest

specifically addressed outside activities, misuse of position/official time (subordinate), and/
or appearance of conflicts of interest:
•
•
•
•
•

2013
2014
2016
2017
2018

Given the above-referenced annual ethics training, Dr. Luber knew or reasonably should
have known that he could not ask a subordinate of his to teach sessions of a class on duty
time for which Dr. Luber was being paid. In spite of that, he improperly asked and
encouraged two subordinates of his, on three occasions, to serve as guest lecturers during
duty hours in university courses for which he was being paid as the primary instructor by the
university. In so doing, he abused his position as a supervisor to induce his subordinates to
provide him with a benefit (i.e., the teaching of a class session by a subordinate) for which he
was being paid.

_ _ Douglas Factor 10 - Potential for Rehabilitation
a. Early truthful admission?
b. Remorsefulness/contrition?
c. Getting assistance with the problem?
d. Reporting of Misconduct before investigation?
Dr. Luber, despite having taken the Agency's annual ethics training, violated ethics
requirements on three occasions. As a result, he has lost the confidence of management
that he can be trusted, on his own, to only use his subordinates for official purposes. Dr.
Luber does, however, possess scientific expertise that is of great value to the CDC. He is
an employee with about 17 years of otherwise good service. If removed from a
supervisory position and placed under the strict scrutiny of senior managers, Dr. Luber
may have the potential to conform his behavior to Agency standards.

__ Douglas Factor 11 - Mitigating Circumstances
a. Personal Problems?
b. Emotional distress?
c. Medical condition?
5

 Douglas Factor Evaluation Checklist
Charge 4: Misuse of Position - Creating the Appearance of a Conflict of Interest

d. Unusual Job tensions?
e. Malice or provocation by others?
Potential mitigating circumstances include the fact that Dr. Luber has been employed
with the CDC for sixteen years, with no prior disciplinary record and ratings of
"Achieved More than Expected Results" to "Achieved Outstanding Results." Dr. Luber
suffered a heart attack on Saturday, September 9, 2017. He was on sick leave from
September 11, 2017 through October 3, 2017.

_ _ Douglas Factor 12 - Effectiveness of a Lesser/Alternative Sanction
a. If removal, why not lesser sanction?
b. Did you consider other alternative sanctions? If not, why? If so, why did you not mitigate?
Taken as an individual charge, alternative sanctions might deter the employee from
engaging in future misuse of subordinates. However, when taken in its totality (with the
four other charges) it is management's opinion, based on the facts, that the proposed 120day suspension is warranted.

I hereby certify that I have considered the twelve (12) Douglas factors as indicated above (with my initial next
to each factor) in making my penalty determination

6

 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

_ _ Douglas Factor 1 - Seriousness of Offense
a. How does the charged conduct affect the agency's operations and/or mission?
b. Was the action intentional/deliberate or inadvertent? Explain.
c. Was it an isolated incident or was conduct repeated? Explain.
d. Did the employee gain anything from the conduct? What?
Ethics violations may form the basis upon which disciplinary action may be taken. CDC
employees must maintain the public's trust by complying with government-wide ethical
statutes, regulations, and standards. Dr. Luber knew or reasonably should have known of
the ethics requirement to only use the duty time of subordinates for official purposes as a
result of his completion of annual ethics training. In spite of that, he improperly asked
and encouraged two subordinates of his, on two occasions, to work on matters that were
not required for the performance of their duties or authorized in accordance with law or
regulation. Such a misuse of the subordinates' official time deprived the Agency of the
benefit of said employees' work during the periods that they were working on unofficial
projects at Dr. Luber's behest. The misconduct was not isolated; it occurred with two
employees on two occasions.

_ _ Douglas Factor 2 - Job Level and Type of Employment
Is the employee a supervisor/manager?
b. Does the person occupy a position trust? How does the employee's charged conduct relate to
his/her position of trust?
c. Does the employee occupy a position of prominence? Explain.
Dr. Luber was assigned to a Supervisory Health Scientist, GS-0601 -15 position; a firstline supervisor, responsible for the supervision of over 10 people, and he managed a
budget of approx. $10 million. He was wholly responsible for contract decisions,
cooperative agreement and grants, hiring, approving travel and training opportunities. As
Director of the Climate and Health Program affiliated with the CDC, Dr. Luber was
highly sought after for presentations, collaborations, and speaking engagements. As a GS
601-15, Dr. Luber was at the highest level of government employment, he had frequent
contact with the public through speeches and speaking engagements, he had teaching
opportunities, and he made funding decisions on cooperative agreements and grants to
state, local and tribal health departments. Dr. Luber is well-known in the Climate and
Health field, and he is highly recognized as an expert in this field. He occupied a position
of great responsibility and trust; his supervisors relied on him to use the official time of

 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

his subordinates only in a manner that was consistent with government-wide ethical
statutes, regulations, and standards.

_ _ Douglas Factor 3 - Prior Misconduct
a. Does the employee have a prior disciplinary record? What for? When?
b. Is the prior discipline for similar conduct as the current charge(s)? Explain.
c. Is the discipline a matter of record?
d. Is it time-barred, i.e. reprimand over 2 years, contract article?
e. Is the prior discipline still being challenged? Explain.
There are no past disciplinary or adverse actions taken against Dr. Luber while employed
at CDC.

_ _ Douglas Factor 4 - Employee's Past Work Record
a. Length of service?
b. Prior work record? What do appraisals say?
c. Ability to get along with others?
d. Dependability?
Dr. Luber has served at the CDC (initially as a Commissioned Corps Officer and then as
a Civil Service employee) since July 1, 2002. He has been rated as "Achieved More than
Expected Results" to "Achieved Outstanding Results" on his annual appraisals from 2009
to the present. Recent inquiries into Dr. Luber's interactions with CDC staff reveal he
does not get along well with many employees, including women and subordinates. In
particular, it has been reported that he has made derogatory comments about women to
the staff, disparaged employees in the presence of others, and generally engaged in
abusive conduct toward subordinates. His dependability, particularly with regard to the
ethical use of his subordinates, is questionable.

_ _ Douglas Factor 5 - Erosion of Supervisory Confidence
a. Is there a loss of trust and confidence? Explain without vague conclusions.
b. How do job duties relate to a loss of trust and confidence?
Center management is not confident that Dr. Luber will consistently comply with ethics
requirements relating to the use of subordinates. Center management has also indicated
that Dr. Luber has lost the confidence of those he leads; e.g., not adhering to the ethical
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 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

rules that those he leads must also follow. These repeated ethical violations have thereby
eroded the confidence that Center leadership has in Luber's ability to lead and to be a
respected leader among his peers and staff. This loss of trust in such a senior employee is
significant. The Agency should be able to rely on an official of Dr. Luber's stature and
experience to always comply with ethical rules pertaining to the use of subordinates.

_ _ Douglas Factor 6 - Consistency of Penalty
Is the penalty consistent with that imposed for other employees for similar charges? If not, why?
The Agency has not had the occasion to propose discipline in a case involving all five
charges as in the subject case.

__ Douglas Factor 7 - Consistency of Penalty with Table of Penalties
a. Is the charged conduct listed in the Table of Penalties?
b. If not, what offense is most similar?
c. Is the proposal penalty within the range identified in table? If not, why?
The CDC Guide for Disciplinary Penalties, derived from HHS Instruction 752, Discipline
and Adverse Action, states that a letter of reprimand to a removal is warranted for this
charge for a first offense. Therefore, this penalty is within the range identified in the CDC
Guide.

_ _ Douglas Factor 8 - Notoriety
a. Any publicity regarding conduct? What type? Explain.
b. Any complaints, concerns registered by customers, public, etc.?
Dr. Luber's alleged misconduct only has a measure of notoriety and public interest
because of his own contacts with the press regarding his case, which resulted in a
Washington Post article entitled "The administration tried to muzzle this scientist on
climate change. But he won't go away," which was posted on the newspaper's website on
May 22, 2019. Dr. Luber's failure to comply with the ethical requirement came to the
attention of the CDC Ethics and Compliance Activity, which resulted in that office
conducting a review of the allegations.

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 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

_ _ Douglas Factor 9 - Notice of Warning about Conduct
a. Any non-disciplinary counseling documented? Copies given to employee?
b. Any briefings/training involving charged violation?
c. Any general Standards of Conduct briefings? When?
d. Any letter of expectations provided to the employee about conduct?
Dr. Luber, like all CDC employees, is required and expected to comply with governmentwide ethical statutes, regulations, and standards. 5 C.F.R. § 2635.70(b) provides that "an
employee shall not encourage, direct, coerce, or request a subordinate to use official time to
perform activities other than those required in the performance of official duties or
authorized in accordance with law or regulation."
5 C.F.R. § 2638. 301 provides that every agency must carry out a government ethics
education program to teach employees how to identify government ethics issues and obtain
assistance in complying with government ethics laws and regulations. An agency's failure to
comply with any of the education or notice requirements set forth in this subpart does not
exempt an employee from applicable government ethics requirements. Dr. Luber completed
Annual Ethics Training (AET) each year for 2012-2018.
HHS/OGC-Ethics Division has provided Annual Ethics Training that addresses concepts
related to the following subjects:
•
•
•
•

Financial conflicts of interest;
Impartiality;
Misuse of position; and
Gifts

The above are content requirements as required by 5 C.F.R. § 2638.307(e)(l) in addition to
government ethics laws and regulations that the Designated Agency Ethics Official (DAEO)
deems appropriate for the employees participating in the training. The following AET's
specifically addressed outside activities, misuse of position/official time (subordinate), and/
or appearance of conflicts of interest:
•
•
•
•
•

2013
2014
2016
2017
2018
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 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

Given the above-referenced annual ethics training, Dr. Luber knew or reasonably should
have known that he could not encourage, direct, coerce, or request that subordinates of his
use official time to work on projects other than those required in the performance of official
duties or authorized in accordance with law or regulation. In spite of that, he improperly
asked and encouraged one subordinate of his to develop course materials on official time for
a private university, and another employee to work on the chapter of a non-government book.
The official duties of the employees did not require work on such projects and neither project
was otherwise authorized under law or regulation.

_ _ Douglas Factor 10 - Potential for Rehabilitation
a. Early truthful admission?
b. Remorsefulness/contrition?
c. Getting assistance with the problem?
d. Reporting of Misconduct before investigation?
Dr. Luber, despite having taken the Agency's annual ethics training, violated ethics
requirements on two occasions. As a result, he has lost the confidence of management
that he can be trusted, on his own, to only use his subordinates for official purposes. Dr.
Luber does, however, possess scientific expertise that is of great value to the CDC. He is
an employee with about 17 years of otherwise good service. If removed from a
supervisory position and placed under the strict scrutiny of senior managers, Dr. Luber
may have the potential to conform his behavior to Agency standards

_ _ Douglas Factor 11 - Mitigating Circumstances
a. Personal Problems?
b. Emotional distress?
c. Medical condition?
d. Unusual Job tensions?
e. Malice or provocation by others?
Potential mitigating circumstances include the fact that Dr. Luber has been employed
with the CDC for sixteen years, with no prior disciplinary record and ratings of
"Achieved More than Expected Results" to "Achieved Outstanding Results." Dr. Luber
suffered a heart attack on Saturday, September 9, 2017. He was on sick leave from
September 11, 2017 through October 3, 2017.
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 Douglas Factor Evaluation Checklist
Charge 5: Misuse of Official Time

_ _ Douglas Factor 12 - Effectiveness of a Lesser/Alternative Sanction
a. If removal, why not lesser sanction?
b. Did you consider other alternative sanctions? If not, why? If so, why did you not mitigate?
Taken as an individual charge, alternative sanctions might deter the employee from
engaging in future misuse of subordinate time. However, when taken in its totality (with
the four other charges) it is management's opinion, based on the facts, that a proposed
120-day suspension is warranted.

l hereby certify that I have considered the twelve (12) Douglas factors as indicated above (with my initial next
to each factor) in making my penalty determination

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