A Closer Look at the “Douglas Factors” that Apply to Federal Disciplinary Actions

In a recent article, we provided an introduction to the “Douglas Factors” that apply in federal disciplinary proceedings. As we explained, federal agencies must consider the Douglas Factors, along with any other relevant criteria, when deciding what disciplinary action to take (if any) against their employees. In this article, Maryland employment lawyer Jay Stafford provides some additional insight into each of the 12 Douglas Factors—including how federal employees may be able to use each factor to their advantage during disciplinary proceedings.

Douglas Factor #1

“The nature and seriousness of the offense, . . . including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.”

Federal employees can face disciplinary action for a wide range of alleged offenses—and the seriousness of an alleged offense will play a major role in determining what is at stake. For federal employees who cannot dispute that they committed the offense in question, disputing any allegations that they acted intentionally, maliciously, or for personal financial gain could be critical for avoiding unnecessary consequences.

Douglas Factor #2

“The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.”

Federal employees who hold senior or supervisory positions within the federal government are often held to a higher standard when it comes to disciplinary enforcement. However, if an employee’s position is not pertinent to the nature, seriousness, or consequences of an alleged offense, then the employee’s position generally should not play a material role in the disciplinary process.

Douglas Factor #3

“The employee’s past disciplinary record.”

Federal employees who have faced disciplinary action in the past can face heightened risks in subsequent disciplinary proceedings. However, not all past disciplinary actions are alike. For example, if an employee’s previous disciplinary action occurred well in the past, or if an employee’s previous offense no longer constitutes an offense under current federal law, these are both highly relevant considerations.

Douglas Factor #4

“The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.”

This “factor” entails a variety of different considerations, all of which can potentially favor or disfavor any individual employee based on the circumstances of his or her employment. If you have years or decades of service, if you have generally received favorable performance reviews, and if you have a strong reputation amongst your peers, these are all considerations that you will want your Maryland employment lawyer to highlight on your behalf.  

Douglas Factor #5

“The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.”

While some offenses can reflect on an employee’s ability to perform his or her job duties going forward, others are isolated incidents that have no bearing on the future. Generally speaking, if your alleged offense does not reflect on your capabilities or trustworthiness as a federal employee, this Douglas Factor should work in your favor.

Douglas Factor #6

“Consistency of the penalty with those imposed upon other employees for the same or similar offenses.”

This is one Douglas Factor that is potentially beyond your control, although you will want to ensure that your alleged offense is not lumped together with others that are more serious in nature. Your Maryland employment lawyer will be able to assist here as well.

Douglas Factor #7

“Consistency of the penalty with any applicable agency table of penalties.”

This Douglas Factor is potentially beyond your control as well—though, here too, you will want to ensure that your alleged offense is categorized correctly. Even if your alleged offense falls into a broad category on your agency’s table of penalties (i.e., inadequate performance or lack of candor), the specific details of your case still merit individual consideration.

Douglas Factor #8

“The notoriety of the offense or its impact upon the reputation of the agency.”

Once again, the details of your case matter. If the nature of your offense is such that your actions did not have any impact on your agency’s reputation, then you shouldn’t face the same level of discipline as someone who committed a more “notorious” offense. Similarly, if your offense is only known within the walls of your agency, this Douglas Factor should work in your favor in this scenario as well.

Douglas Factor #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.”

This is related to Douglas Factor #1. If you were not aware of the rule that you are accused of violating, you cannot be charged with intentionally committing the offense in question. On the other hand, if you should have known about the rule but did not, this could potentially work against you.

Douglas Factor #10

“Potential for the employee’s rehabilitation.”

If necessary, showing that you are capable of rehabilitation—or, better yet, that you have already taken steps toward reform—could help you avoid unnecessary discipline as a federal employee. If you hire a Maryland employment lawyer to represent you, your lawyer will be able to help you decide what steps to take and assist with documenting your efforts so that you can present them during your disciplinary proceeding.

Douglas Factor #11

“Mitigating circumstances surrounding the offense, such as unusual job tensions . . . or bad faith, malice, or provocation on the part of others involved in the matter.”

The relevance of this Douglas Factor is also heavily dependent on the specific circumstances of your case. If you need to present evidence of mitigating circumstances in order to mitigate the consequences of your federal disciplinary proceeding, your Maryland employment lawyer will be able to provide assistance here as well.

Douglas Factor #12

“The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.”

Generally speaking, if heavy-handed discipline is not necessary to prevent you from violating your duties as a federal employee in the future, then heavy-handed discipline is not warranted. Here, too, your lawyer will be able to assist with determining what is appropriate under the circumstances at hand, and if necessary, your lawyer can argue for an alternative sanction that protects your federal employment.

Request a Confidential Consultation with a Maryland Employment Lawyer Now

Are you facing disciplinary action as a federal employee in Maryland? If so, we encourage you to contact us promptly for more information. To request a confidential consultation with Maryland employment lawyer Jay Stafford and his team, please call  410-514-6099 or contact us confidentially online today.