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. See U.S. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 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 . 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. 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. 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. 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. ______________________________ __________________ (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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Just knowing the rules, however, cant fully protect you if a case should arise. 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. Plaza America Merit Systems Protection Board still follows today. It is important that you really highlightthefactors that are in your favor. 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. 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. %PDF-1.6 % 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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 . Lets say you missed a deadline for an important assignment and management has proposed removal. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). But they may refuse to. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Cir. 2012) (internal citations and punctuation omitted). Reston, VA 20190. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Factor: Employee's . Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 2278 0 obj <>stream 11700 Plaza America Drive hbbd``b`:$ Hd V$D? A mitigating factor is one that suggests the discipline be mitigated, or lowered. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. 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. 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 originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Let me give you an example. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. If this is impractical to do, use Sample 2. When looking for an attorney make sure they have experience handling federal-sector employment cases. A well presented reply to theproposed discipline can lead to substantial mitigation. 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. Private sector cases are drastically different. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. If you are low level employee with no supervisory functions this factor should have some mitigating value. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. past performance). This is because it puts you on notice of the penalties which is factor #9, below. Sometimes management may misapply factors, or misconstrue them. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 502, 508 (1994) (holding that because 31 U.S.C. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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). These 12 factors play a key role in the outcome of federal employee discipline cases. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. (Use sample 1). 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. You will be notified in writing of the final decision. 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. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. 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. Be clear, terse, and apologetic. 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. 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. Douglas Factor Analysis. This factor lends itself most to employees arguing for leniency in their case. 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. 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. Do not deny the existence of bad facts. 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. Your absence was not approved by your supervisor. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. 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. Deciding officials should do a Douglas analysis in every case, except when Congress . 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. This factor is generally an afterthought for both management and employees. This has often been considered one of the most important Douglas factors by the MSPB. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 3 Douglas v. Veterans Administration, 5 M.S.P.R. Can an employee take responsibility, correct their behavior and come back to the job? This Douglas factor is not one of the more commonly cited Douglas factors. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Factor: Notoriety and impact 3. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Specific evidence/testimony as to why an employee can no longer be trusted is critical. EAP can be reached by calling 1-800-XXX-XXXX. posted June 9, 2003. Do they have a positive track record? 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. 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. 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. Conclusions and vague statements do not hold much weight with third parties. 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. 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. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The idea is that discipline is meantto be corrective and progressive. You need to look at the specifics of your case in light of the twelve factors. 280 (1981) These factors are used to explain why the penalty was chosen. To some extent, this is a subjective question. 2015). 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 Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Such cases call into question an employees ability to perform their specific job duties with integrity. 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. 280, 290 (1981). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 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. 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 national media picked the story up, and it was very detrimental to the agency. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. That translates into harsher penalties for repeat offenders. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Note. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 51, 8 (2001). Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. 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 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Cir. Berry & Berry PLLC. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 9 Ward v. U.S. 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. However, despite the importance of these criteria, many employees arent familiar with them. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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 We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. These terms are used commonly in Douglas Factors application. Internal Control Evaluation, page 21 . Did the employee have access to a handbook that detailed proper procedure and policy? Federal government websites often end in .gov or .mil. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Obtain insurance protection for your career today. 1 0 obj Federal agencies may take disciplinary action against employees who engage in misconduct. Cir. There are certain standards of behavior and conduct expected of employees by our external and internal customers. For more information, visit WrightUSA.com. 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. 1985). 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.
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