Federal agencies may take disciplinary action against employees who engage in misconduct. If this is impractical to do, use Sample 2. Agency's table of penalties recognizes this severity in establishing ranges of penalties for The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining an appropriate . Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. Lets say you missed a deadline for an important assignment and management has proposed removal. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. The national media picked the story up, and it was very detrimental to the agency. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( If the person signed for receipt of the letter include that information. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Your job as an employee is to support your position as best as you possibly can. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Factor: Nature and seriousness 9. In addition, actions . 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. (Use sample 1). !%7K81E8zi. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. endstream endobj startxref Federal government websites often end in .gov or .mil. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. The site is secure. For example, a law enforcement officer is charged with enforcing laws. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. The Table provides for more serious penalties for . Cir. 7 Douglas v. Veterans Administration, 5 M.S.P.R. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Factor: Consistency with table of penalties 2. Regardless, try to avoid getting into an argument with management over factors. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? You should review the table to make sure that your discipline is in keeping with this table. Douglas Factor Analysis. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Cir. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 1999). A knowledge of the Douglas Factors is helpful for both federal employees and managers. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Any replies submitted will be given full consideration. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). It is important that you really highlightthefactors that are in your favor. -What kind of recovery can I get in my discrimination case? Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. It is important to rebut these issues in a Douglas factor defense. You neither came to work nor did you call in your absence. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n You will be notified in writing of the final decision. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. An official website of the United States government. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. Remain calm, deferential and respectful at all times. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 3 Douglas v. Veterans Administration, 5 M.S.P.R. The Federal Starr is a publication by Starr Wright USA. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. You need to look at the specifics of your case in light of the twelve factors. xfg! Can an employee take responsibility, correct their behavior and come back to the job? If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. The first time an employee is The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. In some instances, you may want to request that management reconsider your case. These are known as Douglas factors. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Obtain insurance protection for your career today. What if I do not agree with managements analysisof a specific Douglas Factor? This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Factor 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. When looking for an attorney make sure they have experience handling federal-sector employment cases. To some extent, this is a subjective question. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Before sharing sensitive information, make sure youre on a federal government site. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Factor: Notoriety and impact 3. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. It is more often used to attempt to aggravate a disciplinary penalty. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. Visit WrightUSA.com to start your policy! On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Explanation, if relevant: (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.Relevant? If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Consistency of the penalty with any table of penalties an agency may have . You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. How the factors will be applied in your disciplinary case depends on the specifics of your case. What every federal employee facing discipline should be familiar with: The Douglas Factors. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. This factor is generally an afterthought for both management and employees. The Douglas factors are also referred to as mitigating factors. past performance). If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. On (DATE), you were scheduled to report to work at (TIME). It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. This Factor takes mitigating circumstances into account. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. For instance, did the employee have access to the table of penalties? We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Sample: Specification #1. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Specific evidence/testimony as to why an employee can no longer be trusted is critical. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. If not, include delivery confirmation by the postal or delivery service. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. Douglas Factors In Depth The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining . Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. Explanation, if relevant: (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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream If you have been disciplined before you will face harsher discipline going forward. Relevant? This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. This Quick Start Guide covers the following Key Points: 1. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. This means you should provide objective facts to support your arguments if you can. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. With responsibility comes greater obligation and scrutiny. Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. Management has likely even required you to review the table and sign a form asserting your knowledge of it. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. Merit Systems Protection Board still follows today. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Ultimately, managers are people too. Sometimes management may misapply factors, or misconstrue them. Why can such behavior not be tolerated? 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream 280, 290 (1981). <> If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The idea is that discipline is meantto be corrective and progressive. Relevant? But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand.
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