Douglas Factors in an MSPB Appeal of Federal Employee Suspension or Dismissal

Federal employees (and some postal workers) have a right to challenge an Agency's decision to suspend them for more than 14 days, terminate their federal civil service, or demote them to a lower-paying position.  Appeals of these actions are filed with the Merit Systems Protection Board (MSPB).  The MSPB is a quasi judicial agency that holds hearings to evaluate the merits of the above types of discipline for Federal Employees and some USPS employees.

Whenever a Federal Employee files an MSPB appeal challenging the above types of actions (also known as "adverse action"), the "Douglas Factors" are very likely to come up. So what are the Douglas Factors?

Douglas Factors

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.  They are called the Douglas Factors because they come from an MSPB case, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).  The factors are a tool that the Deciding Official, and maybe the MSPB Judge, can use to evaluate whether the disciplinary penalty for the Federal Employee is consistent with the misconduct charged and promotes the efficiency of the Federal Civil Service.

Here, in abridged format, are the 12 Douglas Factors:

1. 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.
2. The employee’s job level and type of employment – supervisory or fiduciary, contact with the public, prominence of the position;
3. The employee’s past disciplinary record
4. The employee’s work record: length of service, quality of performance, and dependability
5. 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;
6. The consistency of the penalty with those imposed upon other employees for the same or similar offenses.
7. Consistency of the penalty with the Agency’s Table of Penalties (if any)
8. The notoriety of the offense and the impact on the reputation of the Agency;
9. The clarity with which the employee was notice of the rules violated in committing the offense, including warnings about the conduct;
10. The potential for the employee’s rehabilitation
11. Mitigating circumstances surrounding the commission of the offense (unusual job tensions, personality conflicts, bad faith issues, mental impairment, harassment, etc)
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by this employee or others.

At The Hearing

At hearing, the MSPB Judge will want to hear the Agency Deciding Official articulate that and how he or she considered the relevant factors.  Not all of the factors are relevant.  If you take the Deciding Official's deposition, you can learn: a) what facts the Deciding Official considered for each of these Douglas Factors; b) what evidence or material he relied on for those facts; c) whether the Deciding Official considered the facts as a factor to mitigate the proposed penalty to something lesser, or d) whether the Deciding Official considered the facts as a factor to support the proposed penalty, or as aggravating to enhance the penalty beyond what was proposed.   Without knowing these four things, it will be very difficult to argue that the Deciding Official did not properly consider the Douglas Factors.

At an MSPB hearing, contrary to some bad guidance on the internet and in the Federal Civil Workforce, the Judge will not always make his or her own independent consideration of the Douglas Factors.  Generally speaking, so long as the Agency supports all of its specifications and charges in the proposal and decision letter, then the Administrative Judge can only consider whether the Deciding Official's consideration of the Douglas Factors was thorough and reasonable.  If, however, the Administrative Judge does not sustain all of the Agency's charges, then he or she can independently weigh the Douglas Factors, and impose the maximum reasonable penalty under the circumstances.

Not all of the Douglas Factors apply in every case. However, 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.