Douglas Factors

When an individual is removed from federal employment based on unacceptable performance under the U.S.Code Title 5 Part III Chapter 43 (check your SF-50 to see if Chapter 43 is cited), the Douglas Factors do not apply.  Rather, Agency in such cases must substantiate that:

1.  the individual's performance failed to meet the established performance standards in one or more critical elements of his position;
2.  the agency established performance standards and critical elements and communicated those to the individual at the beginning of the performance appraisal period;
3.  the agency warned the individual of the inadequacies of his performance during the appraisal period and gave him an adequate opportunity to improve; and
4.  after an adequate improvement period, the individual's performance remained unacceptable in at least one critical element.

The Douglas Factors are usually applicable in cases involving unacceptable conduct (rather than performance) issues under U.S. Code Title 5 Part III Chapter 75. In such cases, the Douglas Factors must be considered in determining the appropriateness of the discipline and the penalty.

➤ The US Merit Systems Protection Board ruled in 1981 on the case captioned,  "Curtis Douglas v. Veterans Administration," and stated in its ruling:

"Court decisions and OPM [Office of Personnel Management] and Civil Service Commission issuances have recognized a number of factors that are relevant for consideration in determining the appropriateness of a penalty. Without purporting to be exhaustive, those generally recognized as relevant include the following:

(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 supervisor's confidence in the employee's ability to perform assigned duties;

(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;

(7) consistency of the penalty with any applicable agency table of penalties;

(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) potential for the employee's rehabilitation;

(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; and

(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.67/

Not all of these factors will be pertinent in every case, and frequently in the individual case some of the pertinent factors will weigh in the appellant's favor while others may not or may even constitute aggravating circumstances. Selection of an appropriate penalty must thus involve a responsible balancing of the relevant factors in the individual case. The Board's role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency's shoes in the first instance; such an approach would fail to accord proper deference to the agency's primary discretion in managing its workforce. Rather, the Board's review of an agency-imposed penalty is essentially to assure that the agency did conscientiously consider the relevant factors and did strike a responsible balance within tolerable limits of reasonableness. Only if the Board finds that the agency failed to weigh the relevant factors, or that the agency's judgment clearly exceeded the limits of reasonableness, is it appropriate for the Board then to specify how the agency's decision should be corrected to bring the penalty within the parameters of reasonableness."

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