Attig Law Firm P.L.L.C

In almost every adverse action case before the MSPB, the issue of the “Douglas Factors” is likely to come up. In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct.

Later, at hearing, the MSPB will either take testimony regarding the consideration of the Douglas Factors (if the penalty is challenged as too severe) or may consider the Douglas Factors itself (if the Agency has not proved all of its charged misconduct).

In essence, these factors are a tool to make sure that the “punishment fits the crime”. Here are, in abridged format, the 12 Douglas Factors:

1. The nature and seriousness of the offense, the relation of the offense to the employee’s duties, whether the offense was intentional or inadvertent, or whether or not the offense was committed for gain, with malice, or repeatedly.
2. The employee’s job level and type of employment - supervisory or fiduciary, contact with the public, prominence of the position;
3. The employee’s past disciplinary record
4. The employee’s work record: length of service, quality of performance, and dependability
5. the effect of the offense upon the employee’s ability to continuing performing at a satisfactory level, and the effect on the supervisor’s confidence in the employee after the misconduct;
6. The consistency of the penalty with those imposed upon other employees for the same or similar offenses.
7. Consistency of the penalty with the Agency’s Table of Penalties (if any)
8. The notoriety of the offense and the impact on the reputation of the Agency;
9. The clarity with which the employee was notice of the rules violated in committing the offense, including warnings about the conduct;
10. The potential for the employee’s rehabilitation
11. Mitigating circumstances surrounding the commission of the offense (unusual job tensions, personality conflicts, bad faith issues, mental impairment, harassment, etc)
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by this employee or others.

Not all of the Douglas Factors apply in every case. Agencies will tell you that not all of them apply in every case. While it is a rare case where all of the Douglas Factors apply, it is not uncommon for the Deciding Official to fail to consider one or more of the factors that may have affected his or her penalty choice.

An MSPB Attorney will typically begin to address the consideration of the Douglas Factor facts as early as the oral reply. If you would like the Attig Law Firm to discuss the consideration of the Douglas Factors in your adverse action (or disciplinary action) case, contact the Firm today.

When a Federal Agency charges you with misconduct, it has the burden of proving its case against you. What does the Agency have to prove?

The first thing the Agency has to prove is that the misconduct occurred. This is usually broken into two parts:

1. The conduct charged actually occurred;
2. The conduct charged is misconduct;

Many times, one or the other is not disputed. For example: an employee and the Agency may agree that the employee was AWOL (Absent Without Leave). However, they may not agree that the AWOL was actually misconduct. This usually happens when the employee provides administratively acceptable evidence of a medical condition requiring them to be absent. In this example, the Agency can prove an employee was AWOL, but they can’t prove the employee was “wrong” to be AWOL.

After proving that the conduct occurred, and that the conduct was misconduct, the Agency must prove that the misconduct affects, or has a nexus to, the Agency’s mission. It is a rare case where this is contested. In fact, there are very few cases where the MSPB has said that a charged and proven allegation of misconduct does not bear any nexus to the Agency’s mission. Usually, this happens in three general scenarios:

1. The misconduct occurred entirely outside of the workplace and doesn’t affect the employee’s job or the Agency’s work;
2. The misconduct occurred at work, but has no connection to the Agency’s mission (extremely rare);
3. The charged misconduct is a novel charge or a vague charge.

Once the Agency has proved that the misconduct occurred, and that the misconduct is connected to the Agency’s mission, it merely has to prove that it chose a reasonable penalty. To do so, the deciding official will testify to his or her analysis of the “Douglas Factors”.

The MSPB is typically very deferential to the Agency’s penalty selection. When the Agency has proved all of the misconduct, the Board cannot insert its own judgment - it can only consider whether the Agency’s selection of a penalty was “within the tolerable bounds of reason”.

However, when the Agency cannot prove all of the misconduct, the Board may substitute its own analysis in assessing the penalty. In either case, the evidence pertaining to the Douglas Factors will prove crucial in your case.

1. The misconduct affects or “has a nexus to” the Agency’s mission;
2. The penalty promotes the efficiency of the service.

In all of the above, the Agency has to prove its case by what is called a “preponderance of the evidence”. If just a hair more of the evidence supports the Agency’s charges, they will likely prevail.If you are representing yourself, your Administrative Judge should explain all of this to you very clearly, and provide more information specific to your case.

Please consider retaining an attorney to represent you before the MSPB. Many people can - and do - represent themselves very well before the MSPB. The Administrative Judge’s are typically quite accommodating to pro se litigants.

However, there is a lot on the line. If an adverse action against a federal employee is sustained, it is next to impossible to have it removed from your employment record. Moreover, your federal career could be in jeopardy. If the Agency sustains an adverse action against you, their next step is likely to be removal — the sustained adverse action will typically be Agency Exhibit One.

If you would like to consult with an MSPB attorney regarding misconduct, contact the Attig Law Firm as soon as you receive the proposal letter.