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Selecting Appropriate Action - The Douglas Factors
Penalty Selection and Governing Criteria: The determination of
which penalty to impose in a particular situation requires the
application of responsible judgement. Disciplinary action taken
is based on the conclusion that there is sufficient evidence
available to support the reason(s) for action and that the disciplinary
action is warranted and reasonable in terms of the circumstances
which prompted it.
In
determining the appropriate remedy, management must observe
the principle of "like penalties for like offenses in
like circumstances." This means that penalties will be
applied as consistently as possible. Management must establish
that the
penalty selected does not clearly exceed the limits of reasonableness.
A well known Merit Systems Protection Board (MSPB) case (Douglas
v. Veterans Administration) addressed this issue in detail.
A number of factors which management must weigh in deciding
an
appropriate course of action are discussed in this case. These
factors are often referred to as the Douglas factors. Some
factors may not be applicable to a given case; relevant factors
must
be considered. Bear in mind, however, that certain offenses
(e. g., drug trafficking) warrant mandatory penalties.
Any decision notice concerning an adverse action which may
be reviewed by the MSPB should cite the fact that the relevant
Douglas
factors were weighed in reaching the decision.
Factors
in Penalty Selection – the 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. |
2. |
The
employee’s job level and type of employment, including
supervisory or fiduciary role, contacts with the public,
and prominence of the position. |
3. |
The
employee’s past disciplinary record. |
4. |
The
employee’s past work record, including length of
service, performance on the job, ability to get along
with fellow workers, and dependability. |
5. |
The
effect of the offense upon the employee’s ability
to perform at a satisfactory level and its effect upon
the supervisor's confidence in the employee’s ability
to perform assigned duties. |
6. |
The
consistency of the penalty with those imposed upon other
employees for the same offense in like or similar circumstances. |
7. |
The
consistency of the penalty with agency guidance on disciplinary
actions. |
8. |
The
notoriety of the offense or its impact upon the reputation
of the agency. |
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. |
10. |
The
potential for the employee’s rehabilitation. |
11. |
The
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. |
12. |
The
adequacy and effectiveness of alternative sanctions to
deter such conduct in the future by the employee or others. |
REF:
Douglas v. Veterans Administration, 5 MSPB 313 (1981). |
