The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. How does action taken promote the efficiency of the service? Don't force misconduct into a listed offense unless it accurately fits. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may . You need to look at the specifics of your case in light of the twelve factors. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Let me give you an example. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. Cir. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. !%7K81E8zi. The Douglas Factors . 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Discipline can range from letters of reprimand to short suspensions. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Factor: Employee's . That translates into harsher penalties for repeat offenders. 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 . As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. This Quick Start Guide covers the following Key Points: 1. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. 2 0 obj 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 Factor 1: The nature and seriousness of the offense, and its relation to the employees 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. @b o $&F Sq70 # posted June 9, 2003. 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. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. The Douglas factors 8. * Douglas v. Veterans Administration, 5 M.S.P.R. Whether you use two charges in this case will depend upon the evidence available. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Before sharing sensitive information, make sure youre on a federal government site. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Discipline can range from letters of reprimand to short suspensions. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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). 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. These are known as Douglas factors. 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? If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). ^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. 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. Deciding officials should do a Douglas analysis in every case, except when Congress . 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? The Table provides for more serious penalties for . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Negligent or accidental incidents will be viewed more favorably than intentional acts. 1 0 obj Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter This factor looks to the status of the employee. Obtain insurance protection for your career today. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. %PDF-1.5 % If you list a factor you must explain why it is relevant. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. <> 280 (1981) These factors are used to explain why the penalty was chosen. 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? 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. However, despite the importance of these criteria, many employees arent familiar with them. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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). 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. You neither came to work nor did you call in your absence. This factor lends itself most to employees arguing for leniency in their case. Relevant? 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. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. To some extent, this is a subjective question. Do not deny the existence of bad facts. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Consistency of the penalty with any table of penalties an agency may have . Such cases call into question an employees ability to perform their specific job duties with integrity. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. 280 (1981). Berry & Berry PLLC. What is effect of the misconduct charged? Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. The employee's job level and type of employment . Has an employee been on the job for a long time? A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. endstream endobj startxref Sample 1: I have attached the material relied on to support this proposed removal. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ If not, include delivery confirmation by the postal or delivery service. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. On the surface, many incidents of misconduct may seem to be similar. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Cir. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The Douglas factors are also referred to as mitigating factors. Only those Douglas Factors relevant to each case need be considered. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. -What kind of recovery can I get in my discrimination case? Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. Factor: Notoriety and impact 3. Did the employee have access to a handbook that detailed proper procedure and policy? If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Managers and supervisors should properly document the employee misconduct. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. The .gov means its official. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Your job as an employee is to support your position as best as you possibly can. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 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. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. 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. What kind of recovery can I get in my discrimination case? Explanation, if relevant: (8) 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. A supervisor cannot just say it; he/she has to prove it. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Which is why Federal Employee Professional Liability Insurance is critical. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. endobj 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Consistency of the penalty with any applicable agency table of penalties; 8. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. 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. These terms are used commonly in Douglas Factors application. If this is impractical to do, use Sample 2. The Douglas Factors include: 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. 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. You should not list a factor unless it is relevant. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct.
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