Be clear, terse, and apologetic. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). The Douglas Factors: Disciplining employees is a fact of life. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. In many cases, managers act as deciding officials in discipline cases. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. 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 . The national media picked the story up, and it was very detrimental to the agency. 8.Douglas Factor Analysis. Agency's table of penalties recognizes this severity in establishing ranges of penalties for This factor lends itself most to employees arguing for leniency in their case. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Negligent or accidental incidents will be viewed more favorably than intentional acts. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. When looking for an attorney make sure they have experience handling federal-sector employment cases. However, if you properly argue this factor it can go a long way towards helping your case. Cir. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Let me give you an example. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Factor: Employee's . Cir. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. Merit Systems Protection Board still follows today. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Douglas Factor Analysis. Factor 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. This one is pretty self-explanatory. Cir. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Consistency of the penalty with any applicable agency table of penalties; 8. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Obtain insurance protection for your career today. 0 If you have been disciplined before you will face harsher discipline going forward. hbbd``b`:$ Hd V$D? There are certain standards of behavior and conduct expected of employees by our external and internal customers. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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). 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). 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. This means you should provide objective facts to support your arguments if you can. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 1999). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). what extent, the "Douglas" factors come into play or how egregious the act was. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. The key is credibility. See Douglas v. Veterans Administration, 5 M.S.P.R. The consistency of the penalty with any applicable agency table of penalties; 8. However, despite the importance of these criteria, many employees arent familiar with them. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. We are currently not taking any new cases at this time. 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. The nature and seriousness of the offense, and its relationship to the employee's . Factor 3: The employees past disciplinary record. 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. The Table provides for more serious penalties for . 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. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Sometimes management may misapply factors, or misconstrue them. This factor looks to the status of the employee. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. 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. Similar offenses can be used to guide penalty selection. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. For example, an allegation of dishonesty would be treated . 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. The .gov means its official. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. Ultimately, the more credible evidence you can provide to support your position the better. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Also any awards or accolades the employee has would be mitigating in nature. 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. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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? 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. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? They know the stress of a career, they know how life can be difficult. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Misconduct is also considered more severe if it is done maliciously or for personal gain. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). Don't force misconduct into a listed offense unless it accurately fits. Sample: Specification #1. You need to look at the specifics of your case in light of the twelve factors. This has often been considered one of the most important Douglas factors by the MSPB. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. <> 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. removal). Internal Control Evaluation, page 21 . Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? That translates into harsher penalties for repeat offenders. Berry & Berry PLLC. Cir. What is effect of the misconduct charged? We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. With responsibility comes greater obligation and scrutiny. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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). A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. 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. For instance, did the employee have access to the table of penalties? ______________________________ __________________ (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. 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. We need to specifically state why there is erosion of supervisory confidence. You neither came to work nor did you call in your absence. 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. Whether you use two charges in this case will depend upon the evidence available. 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. 3 0 obj 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. COPYRIGHT 2023. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Lets say you missed a deadline for an important assignment and management has proposed removal. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Can someone help me present the Douglas Factors to management? 4 0 obj Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. You will be notified in writing of the final decision. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Sample 2: You have the right to review the material relied on to support this proposed removal. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. stream 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. Discipline can range from letters of reprimand to short suspensions. This Douglas factor is important and we use this argument in our representation of federal employees. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 280 (1981) These factors are used to explain why the penalty was chosen. Cir. 502, 508 (1994) (holding that because 31 U.S.C. Factor: Nature and seriousness 9. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Your absence was not approved by your supervisor. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. (Use sample 1). 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Suite 305 Other times it may mean providing some evidence to management to further support your position. Relevant? Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Why can such behavior not be tolerated? If you are low level employee with no supervisory functions this factor should have some mitigating value. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. If the person signed for receipt of the letter include that information. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Factor 10: Potential for the employees rehabilitation. What every federal employee facing discipline should be familiar with: The Douglas Factors. 1 0 obj 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 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. A supervisor cannot just say it; he/she has to prove it. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today.

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