alternate image
August 17, 2023 Employment Law

What Federal Employees Should Know About the Douglas Factors

Federal employees who face disciplinary measures enjoy certain due process rights that go above and beyond those available in the private sector. One of those due process rights is the opportunity to respond to the allegations against them and to appeal adverse decisions to the Merit Systems Protection Board (MSPB). When determining a penalty for misconduct-related actions under Chapter 75, the deciding official (or the MSPB on appeal) is required to consider a set of 12 factors known as the Douglas factors. If you are facing disciplinary action as a federal employee, a Norfolk federal employment attorney can help you use the Douglas factors to your advantage.   

The Purpose of the Douglas Factors 

The Douglas factors were established by the MSPB in the 1981 case of Douglas v. Veterans Administration. In that case, seven federal employees had been terminated by their respective agencies for misconduct under Chapter 75. All seven employees appealed their penalties on the grounds that they were excessive. The MSPB ruled that, in disciplinary actions, government agencies bear the burden of proving that the punishment fits the infraction. To do so, it outlined a list of 12 non-exhaustive factors that may be either aggravating or mitigating. The purpose of considering these factors is to prevent penalties that are unreasonable, unfair, or excessive. 

The Douglas Factors 

When determining a penalty, the deciding official and the MSPB must consider the following 12 factors

  1. 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
  2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position 
  3. The employee’s past disciplinary record
  4. The employee’s past work record, including length of service, job performance, ability to get along with fellow workers, and dependability 
  5. The effect of the offense on the employee’s ability to perform at a satisfactory level and its effect on supervisors’ confidence in the employee’s ability to perform assigned duties
  6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses
  7. Consistency of the penalty with any applicable agency table of penalties
  8. The notoriety of the offense or its impact upon the reputation of the agency
  9. The clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question
  10. Potential for the employee’s rehabilitation
  11. 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
  12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others

Employees should keep in mind that the application of these factors can both help and hurt their cases, depending on the circumstances; it thus critical to craft your arguments carefully. 

Protect Your Federal Career With Help From a Norfolk Federal Employment Attorney 

The best way to ensure that the application of the Douglas factors works out in your favor is to seek representation by an attorney skilled in professional defense of federal employees. If you are facing a disciplinary action, please contact a Norfolk federal employment attorney at Pierce / Jewett by calling 757-304-6655 or using our online contact form.