WHAT ARE THE DOUGLAS FACTORS?
In addition to considering whether the employee committed the alleged misconduct, the deciding official for any proposed disciplinary or adverse action must also evaluate the reasonableness of the proposed sanction.
The Merit Systems Protection Board, in Douglas vs. Veterans Administration, 5 M.S.P.R. 280, established criteria that federal supervisors 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 to consider in their assessment of an appropriate penalty. 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.
- The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position:
In cases where an 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 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, an 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, certainly let the deciding official know, as this can be mitigating.
- 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 know, as 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 federal agencies are obligated to ensure consistent penalties are being issued nationwide for the same charges of misconduct.
- 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.
- The notoriety of the offense or its impact upon the reputation of the agency:
While this factor is rarely at issue, in cases where misconduct has been reported by the media, the agency can consider this in determining the appropriate penalty.
- 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 failure to follow policy or procedure cases. If you were unaware that your actions violated agency policy or procedure, this is certainly a mitigating factor.
- The potential for the employee’s rehabilitation:
This factor is often crucial in obtaining a lesser penalty than the one being proposed. Under the MSPB’s case law, an employee is considered to have potential for rehabilitation if they have owned up to their misconduct, especially if that occurs before any charge is made, and if they apologized 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.
- 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 to figure out how to best present this background information in a way that is more likely to result in the deciding official 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 the 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. Also, the MSPB has made it clear no employee should be made “an example” to teach other employees a lesson.
As part of an employee’s reply to any proposed disciplinary or adverse action, the employee should consider what evidence they have relevant to any of these factors which would be mitigating — in other words, be favorable to the employee. For example, a 20–year employee with a spotless record and outstanding performance history is likely to get a lesser sanction than a two-year employee with documented prior misconduct.