DOUGLAS FACTORS – not to be missed by you

Sometimes a federal employee goes before the MSPB prior to filing with the EEOC. The use of the 12 Douglas Factors appears to be submissable in all federal courts as well as MSPB and the EEOC. The 12 Douglas Factors have proven very useful in reducing the harshness of facts brought against the complainant. It also dissects the statements against the complainant into more reasoning and if they are the true facts or opinions without facts.

When the MSPB sustains some but not all of the charges or specifications alleged against an employee, the Board must review the agency-imposed penalty to determine whether it is within tolerable limits of reasonableness.

See Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981). It appears undisputed that the administrative decision in Douglas provides the non-exhaustive list of twelve factors that may be considered in determining the appropriate penalty for a particular offense. See id. at 332; see also McClaskey, 720 F.2d at 587.

The 12 Douglas Factors include:
(1) the nature and seriousness of the offense 
(2) the employee’s job level and type of employment 
(3) the employee’s past disciplinary record
(4) the employee’s past work record, including length of service and dependability 
(5) the effect of the offense on the employee’s ability to perform at a satisfactory level and the supervisor’s confidence in the employee’s ability to perform his assigned duties
(6) consistency of the penalty with those imposed on other employees for similar offenses 
(7) consistency of the penalty with 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
(10) potential for the employee’s rehabilitation 
(11) mitigating circumstances surrounding the offense such as unusual job tensions or personality problems
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. See Douglas, 5 M.S.P.R. at 305.

It is well-settled that “[t]he board is not required to consider all twelve factors in every case; it need only consider those relevant to the individual case.” McClaskey, 720 F.2d at 588. The MSPB’s role in reviewing the selection of an appropriate remedy is “essentially to assure that the agency did conscientiously consider the relevant factors and did strike a responsible balance within tolerable limits of reasonableness.” Douglas, 5 M.S.P.R. at 306.

A review of the record indicates that TSA Director Clark considered the following aggravating and mitigating factors in deciding to remove Kamahele:

(1) the nature and seriousness of the offense; (2) the nature of his employment with TSA; (3) his length of service; (4) his ability to be rehabilitated and deal with and manage employees; (5) the ability or his willingness to be placed at a different position; (6) his refusal to take responsibility for his actions; (7) his lack of past disciplinary action; (8) his dependability; and (9) the long hours and hectic work environment surrounding the rollout of new security measures.

The AJ found further that Dennis Clark, the deciding official, did not consider all of the relevant Douglas factors, i.e., whether the appellant acted for financial gain, the appellant’s dependability
during his 4 years of service with TSA, and the fact that the appellant’s supervisors at the HNL still had confidence in his work at the time of the removal (the AJ found no evidence in the record that Clark had any contact with the appellant in his performance of his duties since he was the Western Area Director and did not work in Hawaii)

Dunn, 96 M.S.P.R. 166, ¶ 10; Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Thus, the Board will modify a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. Dunn, 96 M.S.P.R. 166, ¶ 10. If the agency’s penalty is beyond the bounds of reasonableness, the Board will mitigate only to the extent necessary to bring it within the parameters of reasonableness. Id.; Groeber, 84 M.S.P.R. 646, ¶ 14; Payne, 72 M.S.P.R. at 650-51.

We find that the AJ improperly weighed the Douglas factors and substituted his own judgment for Clark’s. Specifically, the AJ found that, although not all of the Douglas factors were relevant in this case, Clark admitted that he did not consider whether the appellant had acted for financial gain or the appellant’s dependability during his 4 years of service with TSA. ID at 57.

However, based on the misconduct with which the appellant was charged, and the fact that there was no obvious financial gain to be had by the appellant from his actions, we find that “financial gain” is not a relevant factor in this case and the AJ erred by considering it.

This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

WARNING: DOUGLAS FACTORS phased out in favor of SMART AGREEMENTS by TSA

Reference for Kenneth Kamahele:

Plaintiff

Kenneth K. Kamahele
Represented by:

Becky T. Chestnut, McCorriston Miller Mukai MacKinnon LLP

Dayna H. Kamimura-Ching, McCorriston Miller Mukai MacKinnon LLP

William C. McCorriston, McCorriston Miller Mukai MacKinnon LLP

Defendant

Janet Napolitano
Represented by:

Rachel S. Moriyama, Office of the United States Attorney
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My notes on Kamahele case:

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2008 MSPB 106
Docket No. SF-0752-06-0866-I-1
Kenneth K. Kamahele,
Appellant,
v.
Department of Homeland Security,
Agency.
May 15, 2008

A review of the record indicates that TSA Director Clark considered the following aggravating and mitigating factors in deciding to remove Kamahele:

(1) the nature and seriousness of the offense; (2) the nature of his employment with TSA; (3) his length of service; (4) his ability to be rehabilitated and deal with and manage employees; (5) the ability or his willingness to be placed at a different position; (6) his refusal to take responsibility for his actions; (7) his lack of past disciplinary action; (8) his dependability; and (9) the long hours and hectic work environment surrounding the rollout of new security measures.

In June of 2008, Kamahele sued the TSA in federal court, claiming racial discrimination, violation of equal protection of the laws, retaliation and that his firing was based on falsified evidence and a botched investigation.

Kamahele and the TSA reached a settlement late last year, four years after he was fired.
His attorney said the terms of the settlement were confidential.
The TSA gave Kamahele back pay and restored his retirement benefits.

McCorriston Miller Mukai MacKinnon LLP
Mc Corriston Miller Mukai
1900 Avenue of the Stars, Los Angeles, CA 90067-4301 (310) 284-3455 ?

808-529-7300

dayna called me back and said chris cole no longer works at firm, but is the one who handled the case. I tracked down chris cole.

chris cole
Tel:808.523.2543

808-523-2500

spoke with chris cole, who said he no longer accepts these types of cases. he recommended the hawaii state bar.

808-537-9140 hawaii state bar referral line.

ASB Tower
Suite 2200
1001 Bishop Street
Honolulu, Hawaii 96813

Where, as here, the Board sustains the agency’s charges, but not all of the
specifications of those charges, it will review the agency-imposed penalty to
determine whether it is within the parameters of reasonableness. Groeber v. U.S.
Postal Service, 84 M.S.P.R. 646, ¶ 14 (2000), aff’d, 13 F. App’x 973 (Fed. Cir.
2001); Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650-51 (1996). The
Board’s function is not to displace management’s responsibility or to decide what
penalty it would impose, but to assure that management’s judgment has been properly exercised and that the penalty selected by the agency does not exceed
the maximum limits of reasonableness. Dunn, 96 M.S.P.R. 166, ¶ 10; Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Thus, the Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Dunn, 96 M.S.P.R. 166, ¶ 10. If the agency’s penalty is beyond
the bounds of reasonableness, the Board will mitigate only to the extent necessary
to bring it within the parameters of reasonableness. Id.; Groeber, 84 M.S.P.R.
646, ¶ 14; Payne, 72 M.S.P.R. at 650-51. We find that, in mitigating the penalty,
the AJ did not give appropriate deference to the agency’s penalty determination
and that the circumstances analyzed under the Douglas factors do not warrant
mitigation in this case.

¶13 We find that the AJ improperly weighed the Douglas factors and
substituted his own judgment for Clark’s. Specifically, the AJ found that,
although not all of the Douglas factors were relevant in this case, Clark admitted

that he did not consider whether the appellant had acted for financial gain or the
appellant’s dependability during his 4 years of service with TSA. ID at 57.

¶14 However, based on the misconduct with which the appellant was charged,
and the fact that there was no obvious financial gain to be had by the appellant
from his actions, we find that “financial gain” is not a relevant factor in this case
and the AJ erred by considering it. Further, Clark stated that he considered the
appellant’s length of service and his lack of any prior discipline. Feb. 15 Tr. at
179-81. Thus, in essence, Clark did consider the appellant’s dependability during
his service with the agency. We therefore find that the AJ inappropriately found
that Clark failed to afford proper consideration to several relevant Douglas
factors and, thus, improperly concluded that he was not required to defer to the
agency’s penalty determination.

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read
this law, as well as review the Board’s regulations and other related material, at
our website, http://www.mspb.gov. Additional information is available at the
court’s website, http://www.cafc.uscourts.gov. Of particular relevance is the court’s
“Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.

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My personal notes on my case and Douglas Factors:

1. did I act for financial gain?
1. no obvious financial gain (improperly weighed douglas factors)
1. financial gain is a relvant factor when deterermining if the amount was a theft, when further investigation would reveal causation
3. whistleblowing and given disciplinary actions against, which negated awards, advancement
5. being bullied and hostile work environment, destroyed ability to perform at satisfactory
5. denied transfer
5. nominated for tsa of the year.
6. the phone setup, requested list of every employee terminated by the stso action/write-up
8. while the passengers name was given in the tsa investigation, i am unsure of any public impact
10. potental for rehab. 5 years w/o diginity. have to appeal, given no possible end in site.
*11. mitigating circumstances surrounding the offense such as unusual job tensions or personality problems; and
*12. denied alternative work enviornment, without proper response.
*12  person recommending termination, had bad blood with appelant 1. whistleblower attack 2. whistleblower bomb
*12  besides improper denial of transfer, I was also denied emergency medical leave
*11  overlooked medical documentation, tsa work comp errors by tsa management