Douglas Factors
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. This all changed with the board's decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).
In Douglas, the MSPB listed 12 factors that agencies must balance.
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),
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),
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), ; disparate penalties, Parker v. Department of the Navy, 50 M.S.P.R. (1991),
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),
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), Quander v. Department of Justice, 22 M.S.P.R. 419 (1984), ; Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127 (1997),
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)
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),
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, , 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),
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),
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),
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),
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)
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),
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)
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)
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)
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)
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)
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),
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),
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),
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),
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).
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),
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),
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),
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),
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),
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),
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),
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), Rotolo v. Merit Systems Protection Board, 636 F.2d 6 (1st Cir. 1980),
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)
Supervisors' ignoring or condoning certain behavior can indicate lack of notice. Davis v. Department of the Army, 33 M.S.P.R. 223 (1987)
Training on agency policies constitutes notice of expected behavior. Morrison v. National Aeronautics and Space Administration, 65 M.S.P.R. 348 (1994)
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)
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)
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)
Since the Supreme Court overturned the MSPB's Walsh decision (62 M.S.P.R. 586 (1994), 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)
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), overruled in part on other grounds in White v. U.S. Postal Service, 71 M.S.P.R. 521 (1996), (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)
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),
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)
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), remanded to AJ,
Job tension, although not a medical problem, can be a mitigating factor. Franklin v. Department of Justice, 71 M.S.P.R. 283 (1996)
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),
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)
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),
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)
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)