In almost every adverse action case before the MSPB, the issue of the “Douglas Factors” is likely to come up. In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct.
Later, at hearing, the MSPB will either take testimony regarding the consideration of the Douglas Factors (if the penalty is challenged as too severe) or may consider the Douglas Factors itself (if the Agency has not proved all of its charged misconduct).
In essence, these factors are a tool to make sure that the “punishment fits the crime”. Here are, in abridged format, the 12 Douglas Factors:
The nature and seriousness of the offense, the relation of the offense to the employee’s duties, whether the offense was intentional or inadvertent, or whether or not the offense was committed for gain, with malice, or repeatedly.
The employee’s job level and type of employment – supervisory or fiduciary, contact with the public, prominence of the position;
The employee’s past disciplinary record
The employee’s work record: length of service, quality of performance, and dependability
the effect of the offense upon the employee’s ability to continuing performing at a satisfactory level, and the effect on the supervisor’s confidence in the employee after the misconduct;
The consistency of the penalty with those imposed upon other employees for the same or similar offenses.
Consistency of the penalty with the Agency’s Table of Penalties (if any)
The notoriety of the offense and the impact on the reputation of the Agency;
The clarity with which the employee was notice of the rules violated in committing the offense, including warnings about the conduct;
The potential for the employee’s rehabilitation
Mitigating circumstances surrounding the commission of the offense (unusual job tensions, personality conflicts, bad faith issues, mental impairment, harassment, etc)
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by this employee or others.
Not all of the Douglas Factors apply in every case. Agencies will tell you that not all of them apply in every case. While it is a rare case where all of the Douglas Factors apply, it is not uncommon for the Deciding Official to fail to consider one or more of the factors that may have affected his or her penalty choice.
An MSPB Attorney will typically begin to address the consideration of the Douglas Factor facts as early as the oral reply. If you would like the Law Offices of Eric L. Pines, PLLC to discuss the consideration of the Douglas Factors in your adverse action (or disciplinary action) case, contact the Firm today.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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