Selecting Appropriate Action - the Douglas Factors
MSPB Matters - Selecting the Appropriate Level of Corrective Action
The determination of the level of penalty in a particular situation requires responsible judgment. It should not be arbitrary or capricious and be generally consistent with other penalties imposed by that manager in similar situations. In most cases, it should be corrective and progressive – the ultimate goal is to correct the employee’s behavior. Discharge is appropriate when the employee has not responded to progressive discipline or has committed a serious act which of itself is cause for removal.
The Postal Service does not have a table of penalties as each factual situation must be evaluated independently based upon the factors below. That means that two employees involved in the same conduct may receive different levels of penalty based upon their disciplinary history, position, length of service, etc.
The Merit Systems Protection Board (MSPB) has determined that a supervisor must use the well-established set of factors, known as the Douglas factors, in arriving at their decision to discipline an employee. Failure to review these factors during the disciplinary decision process will be grounds for reversal. Any decision notice issued to an employee who has MSPB appeal rights will cite the fact that the relevant Douglas factors were weighed in reaching the decision.
The MSPB also determines whether the level of penalty exceeds the limits of reasonableness. Not all of these factors will be pertinent in every case and frequently some of them will weigh in favor of the employee while other will not. Some will even constitute aggravating circumstances. Selection of an appropriate penalty must, therefore, involve a responsible balancing of the relevant factors in the individual case.
The Douglas 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, performance on the job, ability to get along with fellow workers, and dependability.
5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor's confidence in the employee’s ability to perform assigned duties.
6. The consistency of the penalty with those imposed upon other employees for the same offense in like or similar circumstances.
7. The consistency of the penalty with agency guidance on disciplinary actions.
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 were violated in committing the offense, or had been warned about the conduct in question.
10. The potential for the employee’s rehabilitation.
11. The 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 in the matter.
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
See Douglas v. Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981).
MSPB - Douglas FactorsPage 1 of 1Chicago Labor Relations Office, Rev. 8/14/2008