Mitigating Penalties for Federal Employees

Melville Johnson
April 2, 2020

In determining the reasonableness of the penalties issued by the federal agency, the Merit Systems Protection Board's (MSPB) penalty analysis will be governed by Douglas v.Veterans Administration.[1] In Douglas the MSPB held that twelve (12) factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees. The twelve (12) Douglas Factors are listed below in a condensed format. (Please note: This is not an all-inclusive list. Refer to the MSPB website for a more detailed description of the factors.)

  1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities
  2. Employee’s job level and type of employment
  3. Employee’s past disciplinary record
  4. Employee’s past work record
  5. Effect of the offense upon the employee’s ability to perform at a satisfactory level
  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. Notoriety of the offense or its impact upon the reputation of the agency
  9. Clarity with which the employee was on notice of any rules that were violated in committing the offense
  10. Potential for the employee’s rehabilitation
  11. Mitigating circumstances surrounding the offense; and
  12. Adequacy and effectiveness of alternative sanctions to deter such conduct.

To learn more, read our Douglas Factors blog post.

It is important that the federal supervisor ensures that the penalty is fair and reasonable. If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained.[2] 

The federal employee attorneys at Melville Johnson, P.C. have expertise in litigating MSPB penalties issued against federal employees, and are willing and able to assist you with your legal needs. Call or message us today to discuss your situation and learn how we can assist you.

[1] 5 M.S.P.R. 280,305-06 (1981).

[2] Id.

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.
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