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Douglas Factors

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Overview

Perhaps the most difficult decision in an adverse action is determining the appropriate penalty for the employee's misconduct. On appeal, the Merit Systems Protection Board consistently points out that it will not disturb an agency's choice of penalty unless it is clearly beyond the bounds of reasonableness. A review of the case law since the board's decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), 81 FMSR 7037, tells a somewhat different story.

In Douglas, the MSPB listed 12 factors that agencies must balance. However, it didn't assign weights to these factors and, to make things more confusing, it frequently reminds us that not all factors will be relevant to every set of circumstances. It is clear that the board views the seriousness of the offense as the most important consideration. However, beyond that we aren't quite sure whether, for example, an employee's expression of remorse for his misconduct should be given more weight than his past disciplinary record. What we can say for sure is that an agency's thorough explanation for its balancing of the relevant factors, in its decision letter, testimony and other submissions can have a significant impact on the board's ruling.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

Factor: Nature and Seriousness

· Mitigating factors and the employee's potential for rehabilitation must be balanced against the seriousness of the offense and its effect on the duties of the position and the mission of the organization. Wheeler v. Department of the Army, 47 M.S.P.R. 240 (1991), 91 FMSR 5094.

· Serious misconduct can outweigh an employee's length of service and overall good work record. Hanna v. Department of the Army, 42 M.S.P.R. 233 (1989), 89 FMSR 5402.

· If the misconduct is serious enough, mistakes by the agency in the application of other Douglas factors may be overlooked; e.g. failure to properly notify the employee of consideration of past record, Howarth v. U.S. Postal Service, 77 M.S.P.R. 1 (1997), 98 FMSR 5146; disparate penalties, Parker v. Department of the Navy, 50 M.S.P.R. (1991), 91 FMSR 5554.

Factor: Employee's Job

· Persons in positions of trust can be held to higher standards. Fowler v. U.S. Postal Service, 77 M.S.P.R. 8 (1997), 98 FMSR 5147.

· Positions of trust include jobs with fiduciary, law enforcement and public safety or health responsibilities. Hayes v. Department of Labor, 65 M.S.P.R. 214 (1994), 94 FMSR 5574; Quander v. Department of Justice, 22 M.S.P.R. 419 (1984), 84 FMSR 5704; Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127 (1997), 97 FMSR 5244.

· Loss of confidence in an employee's ability to function as a supervisor supports removal from a supervisory position. Hornbuckle v. Department of the Army, 45 M.S.P.R. 50 (1990), 90 FMSR 5297.

· If an employee has performed well in non-supervisory jobs, but fails as a supervisor, demotion is often viewed as more appropriate than removal from federal service. Jackson v. U.S. Postal Service, 48 M.S.P.R. 472 (1991), 91 FMSR 5297.

Factor: Past Disciplinary Record

· The MSPB may review independently prior disciplinary actions pending in grievance proceedings when reviewing termination and other serious disciplinary actions. U.S. Postal Service v. Gregory, 102 FMSR 7004, No. 00-758 (S. Ct.).

· An employee's record of past discipline is used to enhance the penalty; it may not be used as proof of the current misconduct. Raines v. U.S. Postal Service, 32 M.S.P.R. 56 (1986), 86 FMSR 5375.

· Prior disciplinary actions may be cited even if they involved offenses unrelated to the current charges. Slaughter v. Department of Agriculture, 56 M.S.P.R. 349 (1993), 93 FMSR 5039.

· Past discipline that occurred years before the current action and that involved unrelated offenses likely will be discounted on appeal. Skates v. Department of the Army, 69 M.S.P.R. 366 (1996), 96 FMSR 5027.

· Prior letters of warning and counseling may be used to enhance a penalty if the employee is told in the proposal letter that they will be considered. Eichner v. U.S. Postal Service, 83 M.S.P.R. 202 (1999), 99 FMSR 5351.

· An agency may not cite disciplinary actions that have expired in accordance with agency regulations or a collective bargaining agreement. Whitmore v. Department of the Navy, 34 M.S.P.R. 137 (1987), 87 FMSR 5413.

· An employee may not challenge the merits of prior disciplinary actions if the employee was informed of the actions in writing, they are a matter of record, and the employee had an opportunity to dispute them before a higher authority. Bolling v. Department of the Air Force, 9 M.S.P.R. 335 (1981), 81 FMSR 5580.

· The agency's intent to consider the past disciplinary record must be stated in the proposal letter. Horn v. U.S. Postal Service, 56 M.S.P.R. 511 (1993), 93 FMSR 5076.

Factor: Past Work Record

· Length of service and performance record are relevant considerations in setting the penalty. Jefferson and Dean v. U.S. Postal Service, 73 M.S.P.R. 376 (1997), 97 FMSR 5111.

· When the offense involves supervisory misconduct, the length of service as a supervisor is more important than total service with the agency. Hornbuckle v. Department of the Army, 45 M.S.P.R. 50 (1990), 90 FMSR 5297.

· When official records concerning an employee's performance (e.g. written performance appraisals) are contradicted by a manager's statements in the decision letter or in testimony, the official records will be judged more reliable. Murdock-Doughty v. Department of the Air Force, 70 MSPR 119 (1996), 96 FMSR 5115.

· Disciplinary actions or additional misconduct occurring after the issuance of the adverse action proposal may not be cited as a past disciplinary record, but may be used to show an overall poor work record. Wigen v. U.S. Postal Service, 58 M.S.P.R. 381 (1993), 93 FMSR 5278.

· Positive actions by the agency after learning of an employee's misconduct (e.g. promoting the employee, allowing him to perform his duties for an extended period of time) may indicate that his overall work record outweighs the seriousness of the offense. Hovanec v. Department of the Interior, 67 M.S.P.R. 340 (1995), 95 FMSR 5156.

Factor: Ability to Perform in Future

· Loss of trust in the employee's ability to perform assigned duties in the future may be used to enhance the penalty. Williams v. Executive Office of the President, 54 M.S.P.R. 196 (1992), 92 FMSR 5302.

· Offenses directly related to an employee's duties (e.g. falsification of the same documents he had responsibility to review) raise legitimate concerns about his ability to continue to perform those duties. Forma v. Department of Justice, 57 M.S.P.R. 97 (1983), 93 FMSR 5139.

· Offenses inconsistent with an employee's supervisory responsibilities call into question his ability to function as a supervisor in the future. Hanna v. Department of Labor, 80 M.S.P.R. 294 (1998), 98 FMSR 5413.

Factor: Consistency with Other Penalties

· An agency may not knowingly treat similarly situated employees differently when setting disciplinary penalties. Facer v. Department of the Air Force, 835 F.2d 535 (Fed.Cir. 1988), 88 FMSR 7002.

· When an employee identifies a difference in penalties for the same offense, the agency must present evidence supporting the difference. Woody v. General Services Administration, 6 M.S.P.R. 486 (1981), 81 FMSR 2033.

· There is no requirement that an agency be absolutely consistent in its penalty determinations. The prior disciplinary and work records of the comparison employees may justify a difference. And the underlying facts in each case might warrant different penalties. Parker v. Department of the Navy, 50 M.S.P.R. 343 (1991), 91 FMSR 5554.

· To be similarly situated, the comparison employees must work in the same unit for the same supervisor. Mills v. Department of the Navy, 30 M.S.P.R. 403 (1986), 86 FMSR 5118.

· Comparison of penalties is more appropriately made at the level of the proposer of the action rather than the decision-maker. Bell v. Department of the Treasury, 54 M.S.P.R. 619 (1992), 92 FMSR 5422.

· When an agency has consistently imposed a particular penalty for an offense, it cannot begin to use a harsher penalty without giving notice to employees. Tucker v. Veterans Administration, 11 M.S.P.R. 131 (1982), 82 FMSR 5179.

Factor: Consistency with Table of Penalties

· An agency should not apply its table of penalties so rigidly as to ignore other Douglas factors. Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), 81 FMSR 7037.

· An agency may take a more severe action than suggested in the table of penalties for a first offense if the employee has a record of prior, unrelated offenses. Villela v. Department of the Air Force, 727 F.2d 1574 (Fed.Cir. 1984), 84 FMSR 7010.

Factor: Notoriety and Impact

· Publicity or even the possibility of publicity that could have a negative impact on the reputation of the agency is a factor that may be considered to enhance a penalty. Eilertson v. Department of the Navy, 23 M.S.P.R. 152 (1984), 84 FMSR 5781; Rotolo v. Merit Systems Protection Board, 636 F.2d 6 (1st Cir. 1980), 81 FMSR 7064.

Factor: Clarity of Notice

· While lack of notice of the rules to be followed can be a mitigating factor, an agency is under no obligation to warn employees about behavior they should know is improper. Flanagan v. Department of the Army, 44 M.S.P.R. 378 (1990), 90 FMSR 5210.

· Supervisors' ignoring or condoning certain behavior can indicate lack of notice. Davis v. Department of the Army, 33 M.S.P.R. 223 (1987), 87 FMSR 5270.

· Training on agency policies constitutes notice of expected behavior. Morrison v. National Aeronautics and Space Administration, 65 M.S.P.R. 348 (1994), 94 FMSR 5595.

· Prior misconduct, even though the employee was not formally disciplined, can be cited to show an employee was on notice of the rules to be followed. Arnold v. Department of Energy, 36 M.S.P.R. 561 (1988), 88 FMSR 5092

Factor: Potential for Rehabilitation

· An employee who admits misconduct and shows remorse displays potential for rehabilitation. Casarez v. Department of the Army, 70 M.S.P.R. 131 (1996), 96 FMSR 5118.

· One who rationalizes his wrongdoing, fails to take responsibility or doesn't show an understanding of why his behavior was wrong is not a good candidate for rehabilitation. Herrera-Martinez v. Social Security Administration, 84 M.S.P.R. 426 (1999), 100 FMSR 5077.

· Since the Supreme Court overturned the MSPB's Walsh decision (62 M.S.P.R. 586 (1994), 94 FMSR 5286), it may again be possible to view lying during an investigation as a lack of potential for rehabilitation. LaChance v. Erickson, 118 S. Ct. 753 (1998), 98 FMSR 7004.

· An employee who ceases misconduct after being warned shows potential for rehabilitation. Hillen v. Department of the Army, 66 M.S.P.R. 68 (1994), 94 FMSR 5644, overruled in part on other grounds in White v. U.S. Postal Service, 71 M.S.P.R. 521 (1996), 96 FMSR 5353 (i.e., to the extent Hillen held that statements by deciding officials concerning what penalties they would have imposed for the sustained charges are irrelevant to the board's penalty determination).

· Improvement after an employee has received a letter of proposed adverse action is not particularly convincing. Crawford v. Department of Justice, 45 M.S.P.R. 234 (1990), 90 FMSR 5320.

· Attending meetings with an EAP counselor to discuss personal problems indicates potential for rehabilitation. Buniff v. Department of Agriculture, 79 M.S.P.R. 118 (1998), 98 FMSR 5246.

Factor: Mitigating Circumstances

· Emotional problems and stress may be mitigating factors, but there must be some evidence showing the problems contributed to the misconduct. Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127 (1997), 97 FMSR 5244.

· Stress cannot be viewed as a mitigating factor when the misconduct involves drug use. Barry v. Department of the Treasury, 71 M.S.P.R. 283 (1996), 96 FMSR 5271 remanded to AJ, 95 FMSR 80066.

· Job tension, although not a medical problem, can be a mitigating factor. Franklin v. Department of Justice, 71 M.S.P.R. 283 (1996), 96 FMSR 5308.

· Bad faith on the part of the agency (e.g. evidence that the agency set out to "get rid of" the employee) can be a factor used to reduce the penalty. House v. U.S. Postal Service, 80 M.S.P.R. 138 (1998), 98 FMSR 5384.

· Evidence that the deciding official was predisposed against the employee is a mitigating factor. Eichner v. U.S. Postal Service, 83 M.S.P.R. 202 (1999), 99 FMSR 5351.

Factor: Availability of Alternative Sanctions

· Prior warnings and reprimands indicate that a penalty less than removal will not deter the employee from similar misconduct in the future. Merchant v. U.S. Postal Service, 52 M.S.P.R. 330 (1992), 92 FMSR 5045.

· Penalties designed to make an example of an employee generally will not be upheld. A penalty can be used to deter future misconduct by other employees, but this objective does not warrant overlooking other relevant Douglas factors. Blake v. Department of Justice, 81 M.S.P.R. 394 (1999), 99 FMSR 5107.

· The agency does not have to prove that the penalty was the least sanction necessary to promote the efficiency of the service. It must show that it considered the relevant factors and that the penalty was reasonable. Lewis v. Bureau of Engraving and Printing, 29 M.S.P.R. 447 (1985), 85 FMSR 5508

Links

· Penalties and Mitigation QSG

· Supreme Court rules pending discipline can be considered in terminations, cyberFEDS®, 11/14/01

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