Weigh Douglas Factors in disciplinary cases

Managers dealing with problem employees and employees facing potential disciplinary actions should be aware of the Douglas Factors, 12 standards developed by the Merit Systems Protection Board to decide the appropriateness of a penalty for misconduct or other actions that are taken because of the “efficiency of the service.”

Most managers who have proposed or decided an adverse action have been briefed on the Douglas Factors. Others may not be aware of the Douglas Factors, but should be so they can more effectively determine how to use such managerial tools as progressive discipline.

The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency’s penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. The factors are:

1. Nature and seriousness of the offense.

2. Employee’s job level and type of employment.

3. Employee’s past disciplinary record.

4. Employee’s past work record.

5. Effect of the offense on the employee’s ability to perform at a satisfactory level.

6. Consistency of the penalty with penalties imposed on others.

7. Consistency of the penalty with any table of penalties an agency may have developed to prescribe a range of penalties for certain offenses.

8. Notoriety of the offense.

9. Clarity of notice or prior warnings.

10. Employee’s potential for rehabilitation.

11. Mitigating circumstances surrounding the offense.

12. Adequacy and effectiveness of alternative sanctions.

Anyone dealing with an adverse action should review the entire text of the Douglas Factors and not rely on this summary. For example, Douglas Factor No. 1 includes additional considerations, such as whether the offense was repeated, intentional or for personal gain. The presence of any of these circumstances would enhance the seriousness of the offense, whereas a one-time unintentional offense might cry out for leniency.

Employees who are in trouble should know that if their misconduct is reported in the newspapers or on the nightly news, Douglas Factor No. 8 might cause a relatively minor offense to receive consideration for a more serious penalty because of embarrassment to the agency.

MSPB’s standard for reviewing a penalty is to determine if the agency considered all relevant factors and exercised management discretion within tolerable limits of reasonableness. The board will reduce or mitigate a penalty only where it finds the agency failed to weigh the relevant factors or when the penalty clearly exceeds the bounds of reasonableness.

In deciding an adverse action, a manager should consider all applicable Douglas Factors and discuss that consideration in the decision letter. As long as the deciding official articulates the weighing and balancing of the Douglas Factors, the MSPB judge will not do his or her own evaluation of the Douglas Factors.

A careful Douglas Factor analysis just leaves the question of whether the penalty is within the tolerable limits of reasonableness. For example, a deciding official who fires a 15-year employee with no prior record and outstanding performance ratings for being 15 minutes tardy one morning will probably have that penalty mitigated no matter how thoroughly the Douglas Factor analysis has been crafted by the deciding official.

Conversely, employees who have been found to intentionally lie, cheat or steal in connection with their federal job might, in some agencies, be given a second chance. But most often, a removal for such an offense would be upheld by MSPB because of its seriousness. MSPB will not ordinarily second-guess the deciding official’s judgment on penalty selection or decide what the best penalty is in a particular case. An agency choice of penalty is only modified when it is unreasonably severe.

Employees who have an adverse action have a right to respond before an agency decision is final. In responding, the employee should offer all favorable evidence on the Douglas Factors. Particularly helpful is evidence that the employee was under some personal stress or had a health condition that contributed to the offense. The deciding official should then consider and evaluate the employee’s Douglas Factor evidence in making a final decision on the penalty.