Applying the Douglas factors to ensure fair penalties

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I recently provided training to federal managers on how to effectively manage difficult employees. I raised the issue of applying the Douglas factors to determine the appropriate penalty for a subordinate’s misconduct.

I was struck by how many managers admitted that they heavily relied on human resources’ instructions as to what penalty was appropriate, with the primary emphasis being on how others had been penalized for similar misconduct. Not only is the wrong agency official doing the Douglas analysis, but there are 11 other Douglas factors that may be relevant to a manager’s penalty determination Managers who act as proposing or deciding official will be the ones who have to defend their Douglas analysis at deposition or during a grievance or a hearing, and not the HR. Therefore, you should familiarize yourself with the purpose of the Douglas factors and ask questions of human resources or the Office of General Counsel (OGC) should you have any concerns or questions. Here is a primer on the importance of the proposing and deciding officials’ ownership and understanding of their role in the Douglas analysis.

Douglas v. Veterans Administration, 5 MSPR 280 (1981), is the seminal decision in which the Merit Systems Protection Board determined the 12 factors for determining whether the penalty imposed by an agency is appropriate under the circumstances. Douglas mandates that selection of an appropriate penalty be undertaken through a responsible balancing of all of the relevant factors present in an individual case. Of the 12, some of the factors generally considered in almost every case include the nature and seriousness of the offense, including whether the misconduct was intentional or was frequently repeated, an employee’s job level, past disciplinary record and past work record, including length of service, performance on the job and dependability, consistency of the penalty with those imposed upon other employees for similar conduct, and potential for rehabilitation. The MSPB acknowledges that individual cases may have mitigating or aggravating factors not found in cases of other employees who had engaged in similar conduct.

Some acts of misconduct are so serious that, if proven, a significant penalty such as removal may be appropriate. But in most instances, the proposing and deciding official will need to look at the record as a whole and take into account any mitigating or aggravating factors that are not present in every case. For example, a 15-year employee with a discipline-free record and outstanding performance ratings will likely present a case for mitigation not present in another case involving similar conduct by an employee with a discipline record and who has only been in the federal service for three years. In sum, the MSPB in Douglas makes the point that the merit system principle of “fair and equitable treatment” does not require agencies to have perfect consistency in the application of a penalty for similar conduct. In fact, the opposite is true — the fair and equitable treatment principle should be applied with “practical realism” to ensure the right and just result is reached.

The MSPB generally will not substitute its judgment as to the appropriate penalty for that of the agencies. It will review the penalty only to determine if the agency considered all relevant factors and exercised management discretion “within the tolerable limits of reasonableness.” In cases where the MSPB concludes the record before it fails to show that the agency considered the relevant aggravating and mitigating Douglas factors, or imposed a penalty that clearly exceeds the bounds of reasonableness, it may modify the penalty.

What if the record shows the deciding official based a penalty on some information, such as prior discipline, that was not referenced in the proposal? He has committed error by not allowing the employee the opportunity to respond to information he relied upon. Therefore, make sure that you understand what facts you may and should consider for each relevant Douglas factor. The time to clear up any confusion is before you issue the decision. If you disagree or have doubts about guidance from human resources or OGC, ask more questions—don’t simply go with the flow to keep the disciplinary process moving. You have a responsibility as a manager to make sure your concerns are addressed and you understand your role in the disciplinary process. All employees are entitled to fair and equitable treatment, due process, and thoughtful consideration of the Douglas factors.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your questions to lawyer@federaltimes.com.

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Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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