In a previous post, we provided a brief introduction and explanation concerning the Douglas Factors. Be sure to read that post before reading this post. In this post, we are going to demonstrate one method of incorporating a response to the Douglas factors in a written reply to a proposed disciplinary or adverse action (mostly applies to adverse actions). This is the topic type of which employee and labor relations practitioners can talk about for hours over dinner. Our goal is not to bore the reader, but provide small digestible posts that will make sense in a practical manner. As with many of the topics we discuss, it is probably best to seek a consultant’s expert services when you find yourself searching for this type of advice. A consultants fee can be as low as $135 for one hour of consultation (at current rates).
The information we provide below is one method to address the Douglas Factors in a written response. Of course, there are many methods including one method of not incorporating such a response, or any response at all (letting it all ride on the deciding official). However, in many cases, especially cases involving charges and specifications that are proven (materially true), the affected employee will likely focus on penalty mitigation. In such an instance, addressing the Douglas Factors can be crucial in that you want to convince the deciding official the Douglas Factors, when appropriately considered and applied, should cause him or her to consider lesser alternatives to the originally proposed action.
The following information has been sanitized.
Sample Response Incorporating Douglas Factors
[Introductory Paragraph explaining role of Douglas Factors in context] The Merit Systems Protection Board has jurisdiction to review the Agency selection of penalty in this matter. In Douglas v. Veterans Administration 81 FMSR 7037, 5 MSPR 280 (MSPB 1981), the Merit Systems Protection Board provided twelve factors agencies must consider in penalty determination. It is clear the board views the seriousness of the offense as the most important consideration. However, other factors bear significant weight including, an employee’s expression of remorse for misconduct, prior past disciplinary record, length of service, and prior performance (not all inclusive). I will address each Douglas Factor from my perspective. I believe the information I provide serves as a legitimate basis for the Agency to reevaluate its penalty determination in consideration of a lesser penalty.
[Below, you will address each Douglas Factor in direct relation to your case. Provide appropriate legal citations in support of your position]
Douglas Factor One; Seriousness of the Offense: I agree the offense is serious. However, this offense was not planned or otherwise intentional. It was a spontaneous and unusual response to a unique set of circumstances. Accordingly, my actions were inadvertent in nature and without intent. As previously indicated, the circumstances were unusual and contributing to my actions. There is no history or predisposition of this conduct in my past.
Douglas Factor Two; Employee’s Position: I acknowledge the role of my position as a Supervisory XXXXXXX. However, this position is not “prominent” in any regard in the manner prescribed by the MSPB in its analysis as related to Douglas. Additionally, the incident serving as the basis for the Agency proposal is not directly related to my supervisory duties and should not call into question my ability to perform such duties in the future or Agency confidence in this regard.
Douglas Factor Three; Past Disciplinary Record: I have not been previously disciplined. It is important to note the MSPB has held, a lack of a prior disciplinary record is a significant mitigating factor. Wentz v. U.S. Postal Service, 102 FMSR 5155 , 91 MSPR 176 (MSPB 2002).
Douglas Factor Four; Past Work Record: Aside from this incident, I maintained an exemplary and distinguished work record. Over the course of my career, I have routinely been recognized as a superior employee. As some examples (not all inclusive), I offer the following:
January 20, 2006: Special Contribution Award
October 12, 2006: Outstanding Performance Rating
October 10, 2007: Outstanding Performance Rating
August 11, 2008: Quality Step Increase
October 24, 2008: Outstanding Performance Rating
October 1, 2009: Excellent Performance Award
November 2, 2010: Outstanding Performance Award
I would note the MSPB has found Performance records and years of service can be significant mitigating factors. Jackson and White v. Department of the Army, 105 LRP 45028 , 99 MSPR 604(MSPB 2005). MSPB also found, when the offense involves supervisory misconduct, an excellent work record weighs in favor of retaining the appellant in the workforce. Hornbuckle v. Department of the Army, 90 FMSR 5297, 45 MSPR 50(MSPB 1990). The MSPB also found, better-than-satisfactory performance ratings and occasional special act awards can be mitigating factors. Suarez v. Department of Housing and Urban Development, 104 LRP 25889 , 96 MSPR 213 (MSPB 2004).
Douglas Factor Five; Supervisory Confidence: There is no reasonable basis to believe I failed to maintain, or will be unable to maintain, the confidence of employees or fellow supervisors and perform my duties in the future. In fact, I excelled working with others throughout my entire career. I am able to provide multiple character references in support of my position. It should be noted the MSPB reviews this factor in the context of a different type of misconduct than I am charged with. Specifically, the MSPB reviews misconduct reflecting adversely on reliability, veracity, trustworthiness and ethical conduct in relation to trustworthiness, particularly in light of my current position of responsibility as a supervisor. Leatherbury v. Department of the Army, 107 LRP 20063 , 105 MSPR 405 (MSPB 2007). None of these factors are at issue in my case.
Douglas Factor Six; Penalty Consistency: I am aware of some instances in which employees, including supervisors, have been similarly charged and lesser penalties were imposed. Due to my XXXXXXX status, obtaining documentary information to support this claim is nearly impossible as the FOIA process is time consuming. However, upon appeal, I will request such information in discovery proceedings before the MSPB. I would note the MSPB, in describing consistency, held,
When determining appropriate penalty for employee misconduct, agencies must consider consistency of the current penalty with that imposed on other employees for same or similar offenses. Williams v. Social Security Administration, 109 LRP 70875 , 586 F.3d 1365 (Fed. Cir. 2009).
An agency cannot knowingly and intentionally treat similarly situated employees differently. Fearon v. Department of Labor, 105 LRP 41646 , 99 MSPR 428 (MSPB 2005).
Douglas Factor Seven; Table of Penalties: The Agency is proposing removal, the most extreme penalty, the equivalent of economic capital punishment, available in this matter. However, according to the Agency Table of Offenses and Penalties, the sanction for XXXXXXXXXX ranges from a five day suspension to removal. This provides a wide latitude of lesser penalties.
Douglas Factor Eight; Notoriety: Though there was minor printed news coverage of this event, such coverage did not rise to the level of notoriety as defined by Webster’s Dictionary in that I was not, and have not become, “famous or well known” for the conduct in question. In contrast, I note the matter of XXXXXXX, in which the MSPB found,
The substantial amount of negative publicity resulting from a XXXXXXXXX failing to ensure that subordinate XXXXXXX prior to releasing an XXXXXXXXXX was a factor to be considered in making the penalty determination. XXXXXXXXXXx, XXXXXXX , XXXXXXX (MSPB 2006).
By comparison, there was only very limited, short-lived, and extremely localized negative publicity arising from my incident. Furthermore, the publicity arising from my incident did not negatively affect the reputation of the Agency, whereas in the XXXXX matter, the reputation of the Agency sustained significant ongoing negative effects on a national level including cable news broadcasts. In contrast, XXXXXX received a twenty-day suspension.
Douglas Factor Nine; Notice: Though not “noticed” in the context of applying the Douglas factors, it is common sense I should not have engaged in the indicated conduct.
Douglas Factor Ten; Rehabilitation Potential: I believe there is strong potential for rehabilitation. Specifically, my previous performance and work history combined with my individual (completed) efforts thus far in seeking anger management assistance, the honesty I displayed regarding this matter during the investigation, as well as the assistance of the Employee Assistance Program, makes me a strong candidate for consideration of rehabilitation potential. In short, not only have I voluntarily made efforts to modify my behavior, I would willingly engage in Agency directed efforts as well. Furthermore, I am willing to consider agency provided stipulations as a condition of rehabilitation. I would note, in Wentz v. U.S. Postal Service, the MSPB found,
An employee who has served an agency for a substantial period of time without prior discipline, has a good work ethic, and takes responsibility for his actions, shows a good potential for rehabilitation. Wentz v. U.S. Postal Service, 102 FMSR 5155 , 91 MSPR 176 (MSPB 2002).
Douglas Factor Eleven; Mitigating Circumstances: As previously indicated, I believe there were mitigating, though not excusing, circumstances surrounding the conduct. Specifically, Mr. XXXXXX escalated tensions, other parties present corroborate my position, no one at the meeting controlled the meeting, other XXXXXXXX rebuffed Mr. XXXXXX at the meeting. Mr. XXXXXXX essentially targeted me for harassment in an open forum and created a great deal of stress when he directly challenged my integrity. I did not intend to engage in the conduct I exhibited and continue to regret my actions to this day. I would note, in both Franklin v. Department of Justice and Brown v. Department of the Army, the MSPB found,
Job-related tensions and stress can be mitigating factors. Brown v. Department of the Army, 104 LRP 27036 , 96 MSPR 232 (MSPB 2004); Franklin v. Department of Justice,96 FMSR 5308, 71 MSPR 583 (MSPB 1996).
Douglas Factor Twelve; Alternative Sanctions: An alternative sanction will promote the efficiency of the service as effectively as the proposed sanction in that the management environment was not negatively impacted following the incident and I was allowed to continue working for over over one year with no demonstrable negative impact on the efficiency of government operations. Specifically, I offer the following alternatives, separate, or in combination, I believe are applicable to my specific circumstances,
Penalty Mitigation: A lesser form of penalty, given the extended administrative leave I have served, would serve the underlying purpose.
Last Chance Agreement: An Agreement stipulating conditions of continued employment that may include abeyance of the proposed penalty for a period of one year conditioned on future conduct in return for waiver of appeal rights.