By John V. Berry, Esq., www.berrylegal.com
In our legal practice we defend federal employees in disciplinary and adverse actions. From our experience in defending federal employees in disciplinary and adverse actions, one of the most critical issues involves the use of the Douglas factors in attempting to mitigate (reduce) a proposed disciplinary penalty in a case. The Douglas factors are also referred to as mitigating factors. They are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed.
The Douglas factors are the result of the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). When we approach an appeal before the Merit Systems Protection Board (MSPB) for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can also be used as aggravating factors to justify the imposition of higher penalties. Often times, these factors can be confusing, so I have explained each of the 12 factors below:
THE 12 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.
Explanation: This Douglas factor generally refers to how serious an allegation is and how it relates to a federal employee’s particular position. For instance, an allegation of theft would be treated more seriously, under this Douglas factor, for an individual that encumbers a law enforcement position. This factor also looks at whether an allegation is part of a pattern of similar conduct and whether or not the allegations relate to intentional actions as opposed to something that occurred as a result of a genuine mistake. Generally, this factor tends to be used more by a federal agency for
purposes of aggravating (or supporting) an enhanced disciplinary penalty.
(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position
Explanation: This factor is not one of the more frequently used factors. It is more often used to attempt to raise a disciplinary penalty. For example, a federal agency may attempt to consider the particular position that one holds, i.e. high level supervisor (or type of position - law enforcement) as an aggravating factor.
(3) The employee’s past disciplinary record
Explanation: This factor is generally used for purposes of mitigation. Typically, this Douglas factor is argued for the purposes of lessening a penalty. For instance, if a federal employee has worked for the federal agency involved for 20 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline.
(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability
Explanation: This factor is one of the most often used arguments in support of mitigation by a federal employee. Typically, this factor is used by an employee to support a reduction in penalty based on their good record of service to their agency. For example, in the disciplinary cases that we handle we might attempt to mitigate a disciplinary penalty by showing that an employee's years of service (especially if a long term employee), performance ratings, commendations / awards and letters from supervisors / co-workers support a reduction in a disciplinary penalty.
(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties
Explanation: Federal agencies in serious disciplinary / adverse actions tend to use a blanket statement in the proposal notice claiming that they have lost confidence in a particular employee, without supporting the contention, to support the aggravation of a penalty. I find that this Douglas factor can be very helpful for purposes of mitigation where an employee has continued to work successfully in their normal position, over an extended period of time, after the underlying incident has occurred. The argument for mitigation here is that the federal employee continued to work in a critical position while the investigation was ongoing which supports the fact that the agency has not lost confidence (or trust) in the individual.
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses
Explanation: This Douglas factor tends to be argued by federal employees for mitigation and by proposing officials for aggravation of disciplinary penalties. Often times, we find that we can point to inconsistencies in the penalties issued to other
federal employees versus a client. For instance, in this type of situation we would argue that you cannot issue a light penalty for one person (ex. 10-day suspension) and propose removal for another based on similar allegations.
(7) Consistency of the penalty with any applicable agency table of penalties
Explanation: A federal agency may attempt to rate a proposed penalty at a certain level as a result of their interpretation of an agency’s table of penalties. The table
of penalties is merely a chart with lists of individual offenses and ranges of penalties for such offenses. That said, we find that it is important to actually make sure that a proposed disciplinary action has been listed appropriately under the chart; often times they are not and lead to more significant penalties. As a result, we often argue that a particular allegation has not been correctly identified under the agency’s table of penalties.
(8) The notoriety of the offense or its impact upon the reputation of the agency
Explanation: This factor generally is used by a federal agency to attempt to support the aggravation of a disciplinary penalty. Most commonly this factor comes into play
when the underlying incident is reported in the media. Generally, an agency will attempt to aggravate a disciplinary penalty the more that an incident has been publicized in the news in a negative manner.
(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
Explanation: This factor generally refers to the rules governing the underlying allegations as is used quite often in mitigation in our federal employment defense cases. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Often times a federal employee that has been charged with a violation of agency rules has not been properly trained with respect to the rules or regulations that they have been charged with violating. Therefore, in defense cases we attempt to illustrate the lack of notice as to the actual rules that have been allegedly violated by an employee, in addition to a lack of training on the issues that have been charged in a disciplinary action.
(10) The potential for the employee’s rehabilitation
Explanation: While many federal agencies attempt to use this Douglas factor for purposes of aggravating a disciplinary penalty, we find that this factor tends to be good for purposes of mitigation. For instance, we might use this factor to argue that a federal employee's good career record and the actions that they have taken during the investigation demonstrate that they are good candidates for rehabilitation and hence should receive a lower penalty (more common in proposed removal cases). Often times, when a federal employee accepts responsibility for their actions in a case this can help mitigate a proposed disciplinary penalty.
(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 in the matter
Explanation: This factor is generally referred to as a miscellaneous mitigation factor which can include many potential considerations. It is a very broad mitigating factor. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others
Explanation: This factor generally is used for purposes of mitigation of proposed disciplinary penalties. We have argued, in cases for federal employees, that a different penalty (other than the one proposed) would be more appropriate and still serve the same disciplinary purpose. Sometimes, we have argued that instead of removing a federal employee that there are other effective resolutions to a disciplinary action. For instance, where an individual has been placed in an unpaid suspension for several months while an investigation was ongoing, we would argue that any future disciplinary penalty consider the prior suspension and loss of pay suffered by the employee during the time at issue for purposes of mitigation. Sometimes this factor can also lead to settlement negotiations over the ultimate penalty issued in a case where an employer is willing to consider alternative discipline.
When responding to a proposed disciplinary or adverse action, or an appeal to the MSPB, it is important to put forth all of the applicable Douglas factors to reduce potential disciplinary actions. Douglas factor issues vary greatly from case to case and federal employees should retain an attorney knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues.