If you are low level employee with no supervisory functions this factor should have some mitigating value. 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 . xfg! The Douglas Factors . The notoriety of the offense or its impact upon the reputation of the agency; . If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. 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. This is because it puts you on notice of the penalties which is factor #9, below. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 51, 8 (2001). See Douglas v. Veterans Administration, 5 M.S.P.R. 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 1999). It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. The .gov means its official. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. past performance). Why can such behavior not be tolerated? And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. stream the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. A deciding official must consider specific factors in determining the reasonableness of the penalty. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. The factors may mitigate or aggravate (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.Relevant? These 12 factors play a key role in the outcome of federal employee discipline cases. Misconduct is also considered more severe if it is done maliciously or for personal gain. 10 Ward v. U.S. The Douglas factors 8. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Cir. The Douglas factors are also referred to as mitigating factors. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 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. Just knowing the rules, however, cant fully protect you if a case should arise. 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 2 0 obj Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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 . Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. 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. Cir. The more notorious the offense you commit the more severe the discipline you will face. This table should be available to you as an employee. Internal Control Evaluation, page 21 . Deciding officials should do a Douglas analysis in every case, except when Congress . Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. 3 0 obj Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. %PDF-1.6 % The Douglas factors are: (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; 1 0 obj Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Discipline can range from letters of reprimand to short suspensions. Sample: Specification #1. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. COPYRIGHT 2023. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. Did the employee have access to a handbook that detailed proper procedure and policy? 11700 Plaza America Drive The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Relevant? Sample 2: You have the right to review the material relied on to support this proposed removal. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. 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. Conclusions and vague statements do not hold much weight with third parties. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. hb```f``2c`a`,c`@ r, ^Ma Suite 305 If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. For instance, did the employee have access to the table of penalties? unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. For more information, visit WrightUSA.com. Can someone help me present the Douglas Factors to management? They likely held the same job you holdat some point in the past. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. removal). Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. EachDouglas Factor can work for or against an employee depending on their specific case. The nature and seriousness of the offense, and its relationship to the employee's . In many cases, managers act as deciding officials in discipline cases. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Consistency of the penalty with any table of penalties an agency may have . . It is important that you really highlightthefactors that are in your favor. Factor: Consistency with table of penalties 2. 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The first time an employee is Reston, VA 20190. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. This article covers the Douglas Factors. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. Factor: Employee's . All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. If you have been disciplined before you will face harsher discipline going forward. 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. 9 Ward v. U.S. Sometimes management may misapply factors, or misconstrue them. In some instances, you may want to request that management reconsider your case. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Managers must apply penalties that are similar to those imposed in like cases. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Also any awards or accolades the employee has would be mitigating in nature. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 280 (1981) These factors are used to explain why the penalty was chosen. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. It is more often used to attempt to aggravate a disciplinary penalty. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. This Quick Start Guide covers the following Key Points: 1. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter This means you should provide objective facts to support your arguments if you can. Douglas Factor Analysis. !%7K81E8zi. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. Lets say you missed a deadline for an important assignment and management has proposed removal. 280, 305-06 (1981). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. Your absence was not approved by your supervisor. Managers and supervisors should properly document the employee misconduct. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. This Douglas factor is important and we use this argument in our representation of federal employees. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The fourth Douglas Factor requires managers to take an employees past performance into account. The national media picked the story up, and it was very detrimental to the agency. Other times it may mean providing some evidence to management to further support your position. 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. -What kind of recovery can I get in my discrimination case? Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Cir. The result will turn on the specifics of your case and the procedural posture as well. %PDF-1.5 49 0 obj <> endobj With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Which is why Federal Employee Professional Liability Insurance is critical. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Check with your labor relations advisor. Cir. Before sharing sensitive information, make sure youre on a federal government site. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. 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. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. See Douglas v. Veterans Administration, 5 M.S.P.R. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. What every federal employee facing discipline should be familiar with: The Douglas Factors. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 1985). i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside.
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