Douglas Factors Federal Employment Law Attorneys
WHAT ARE THE DOUGLAS FACTORS (and how does the Agency and MSPB use them)?
The Federal Employment Law team of attorneys at The Federal Practice Group, headquartered in Washington, D.C., and representing federal employees nationwide, knows the ins and outs of federal employment law, and can assist you if you are facing proposed discipline, or want to appeal an adverse action to the MSPB.
In addition to considering whether a federal employee committed the alleged misconduct, the agency’s deciding official for any proposed disciplinary or adverse action must also evaluate the reasonableness of the proposed sanction. If the agency has taken an adverse action against a federal employee, and the federal employee chooses to appeal to the Merit Systems Protection Board, or MSPB, then the Administrative Judge at the MSPB will also look at the Douglas factors to determine whether the agency’s chosen penalty was appropriate in deciding whether to sustain, reverse, or mitigate the adverse action.
The Merit Systems Protection Board, in Douglas vs. Veterans Administration, 5 M.S.P.R. 280, established criteria that federal supervisors and MSPB Administrative Judges must consider in determining an appropriate penalty to impose for an act of federal employee misconduct. These twelve factors are commonly referred to as “Douglas Factors” and include the following:
- 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:
This is typically considered to be the most important factor for the deciding official and MSPB Administrative Judge to consider in their assessment of an appropriate penalty for a federal employee’s misconduct. If you lacked any intent to commit misconduct or if the proposing official acknowledges that the alleged misconduct was an unintentional mistake, it makes sense to highlight this during your reply or MSPB appeal.
- The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position:
Relevant federal employment law cases from the MSPB have established that where a federal employee held a supervisory or otherwise prominent position, they may appropriately be held to a higher standard of conduct than a lower level employee.
- The employee’s past disciplinary record:
If you have never before been alleged to have committed any misconduct and/or have never been previously been disciplined, make sure the deciding official knows this, as, in federal employment law, the penalty for a first offense is typically less severe than for repeat offenses. If you have been previously disciplined, especially for the same charge, this can be considered aggravating. In this case, a federal employment law attorney can assist you in addressing this factor to distinguish the recent incident or explain other circumstances that may cause the deciding official to issue a less severe sanction.
- The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability:
If you have a solid performance record and several years of service with the federal government, certainly let the deciding official and MSPB administrative judge know, as this can be mitigating under the MSPB’s case law.
- 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 work ability to perform assigned duties:
If your supervisor still supports you, even after knowing what occurred, let the deciding official and MSPB administrative judge know, as in federal employment law, the relationship between the employee and the supervisor is often critical to what decision is made on a proposed adverse action.
- Consistency of the penalty with those imposed upon other employees for the same or similar offenses:
This factor is hugely important, as the U.S. Court of Appeals for the Federal Circuit has held that a key premise of federal employment law is that federal agencies are obligated to ensure consistent penalties are being issued nationwide for the same charges of misconduct. Request comparator evidence prior to replying to any charges against you, and present any favorable comparator evidence to either the deciding official or the MSPB Administrative Judge.
- Consistency of the penalty with any applicable agency table of penalties:
Every federal agency has a table of penalties — although it may be called something different — describing possible charges and suggesting reasonable penalties for those charges. If the sanction proposed against you is inconsistent with the agency’s table of penalties, point that out at your reply to the deciding official or appeal to the MSPB Administrative Judge. While federal employment case law does not require federal agencies to abide by their table of penalties 100% of the time, it is certainly relevant to whether the penalty is reasonable.
- The notoriety of the offense or its impact upon the reputation of the agency:
While this factor is rarely an issue, in cases where misconduct has been reported by the media, federal agencies can consider this in determining the appropriate penalty under relevant federal employment law.
- 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:
This factor is often at issue in cases where the federal employee is charged with failure to follow policy or procedure. Under relevant federal employment law, if you were unaware that your actions violated agency policy or procedure, this is certainly a mitigating factor that you should stress to the deciding official or MSPB Administrative Judge.
10. The potential for the employee’s rehabilitation:
This factor is often crucial in federal employment law for obtaining a lesser penalty than the one being proposed. Under the MSPB’s case law, a federal employee is considered to have the potential for rehabilitation if they have owned up to their misconduct, especially if that occurs before any charge is made, and if they apologized to the agency for their actions. In cases where it is clear that the employee committed misconduct, admitting what you have done and apologizing is often your best bet to obtaining a lesser penalty from the deciding official or MSPB Administrative Judge.
- 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:
If you have been wrongfully charged as a result of discrimination, whistleblower retaliation, or even just because a supervisor is “out to get you,” it is advisable to consult with legal counsel familiar with federal employment law to figure out how to best present this background information in a way that is more likely to result in the deciding official or MSPB lessening the penalty.
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others:
In cases where it is apparent that a federal employee has already learned their lesson, it makes sense to highlight this, as the goal of discipline in the federal government is supposed to be corrective in nature, not punitive according to federal employment case law. Also, the MSPB has made it clear no federal employee should be made “an example” to teach other employees a lesson.
As part of a federal employee’s reply to any proposed disciplinary or adverse action, or any MSPB appeal, the employee should consider what evidence they have relevant to any of these factors which would be mitigating under existing federal employment law— in other words, be favorable to the federal employee. For example, a 20–year employee with a spotless record and outstanding performance history is likely to get a lesser sanction from a deciding official or the MSPB than a two-year employee with documented prior misconduct under current federal employment case law.
If you are facing discipline or an adverse action, contact the Federal Employment Law team at The Federal Practice Group for a consultation today.
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