As a federal employee, you have the right to respond to any adverse action an agency plans to take against you. There are several steps in the process at which you can respond. Ultimately, however, you want to show that you do not deserve to face discipline or that the proposed discipline isn’t warranted.
Here, it’s important to understand which law your agency is using to frame its argument. If your agency is bringing action against you under Chapter 43, your agency must explain the problem and give you a chance to improve your performance. You do not get the same performance improvement period under Chapter 75. Instead, the agency must meet a higher standard of proof, and it must review the Douglas factors for your situation.
The Douglas factors are a set of mitigating circumstances your agency must consider before determining the appropriateness of any adverse actions. The U.S. Merit Systems Protection Board (MSPB) formalized these factors in 1980 when it ruled on the case of Douglas v. Veterans Administration. The case actually involved seven different employees, of which Curtis Douglas was the first named.
In that case, the MSPB determined:
- It had the authority to reduce the penalties an agency imposes upon an employee when it deems that the penalty is excessive, arbitrary or unreasonable
- Agencies need to apply at least 12 relevant factors to a case to determine whether a penalty was reasonable and appropriate
- Six out of seven penalties were reasonable, appropriate and affirmed
So, while the MSPB acknowledges that context matters and the circumstances of your case are important to the appropriateness of any punishment, you still need to understand how the Douglas factors might apply. If you don’t understand correctly how the Douglas factors could influence your case, you might be surprised to find the MSPB upholding your agency’s decision.
12 mitigating factors
In Douglas v. Veterans Administration, the MSPB listed 12 factors that agencies must consider before deciding a penalty is appropriate. Notably, the MSPB noted the list was not exhaustive, and other factors could apply, depending on the circumstances.
The 12 listed factors were:
- The nature and severity of the offense
- The level and responsibilities of your job
- Any previous discipline
- Your performance record
- The effect the offense has on your ability to perform your job at a satisfactory level
- The consistency of your punishment with that for other employees with similar issues
- The consistency of your punishment with any agency tables or guidelines for penalties
- Visibility of the offense and its impact on agency reputation
- The clarity of the agency expectations violated by the offense
- Your potential for rehabilitation
- Environmental circumstances such as unusual job tensions, harassment, bad faith or provocation
- The likelihood that the penalties may prevent similar offenses in the future
While the MSPB says some cases may involve additional factors, it also says these factors may not all apply to every case.
How much do the Douglas factors matter?
In Douglas v. Veterans Administration, the MSPB found that the agencies had been reasonable with six of their seven decisions. However, the seventh offers an idea of how the MSPB might weight the Douglas factors.
In that case, the Department of the Air Force had released a veteran after claiming that he had failed to properly request leave for a 15-day absence. The Air Force cited two previous suspensions but did not consider any other factors. These included the fact the employee had worked in civilian government for 24 years and had requested leave multiple times for the same medical issue that led to his absence.
In light of the circumstances, the MSPB reinstated the employee. In place of his removal, the MSPB reduced his penalty to a 30-day suspension.
As this illustrates, it can be difficult to anticipate what the MSPB might think of your circumstances. You don’t want to rely too heavily on the Douglas factors, but you do want to bring them to light. Finding the right balance tends to require the deft touch of someone well-versed in federal employment law.