The employee's job level and type of employment . The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. These 12 factors play a key role in the outcome of federal employee discipline cases. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Plaza America For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. Visit WrightUSA.com to start your policy! This factor looks to the status of the employee. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. See U.S. 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. 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 . They likely held the same job you holdat some point in the past. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. It is important to rebut these issues in a Douglas factor defense. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. What if I do not agree with managements analysisof a specific Douglas Factor? In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. ^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. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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 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. Which is why Federal Employee Professional Liability Insurance is critical. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. We are currently not taking any new cases at this time. 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). Sample 1: I have attached the material relied on to support this proposed removal. 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. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. The consistency of the penalty with any applicable agency table of penalties; 8. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Did management send out a memo clarifying rules? Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Factor 7: Consistency of the penalty with any applicable agency table of penalties. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 1999). 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). * Douglas v. Veterans Administration, 5 M.S.P.R. 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. Offenses related to intoxicants. 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 . This is because it puts you on notice of the penalties which is factor #9, below. While each case is different, seeking alternatives may be useful. !%7K81E8zi. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. These are known as Douglas factors. 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. 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. 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. 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). 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). 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. endobj %PDF-1.5 % This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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. It is more often used to attempt to aggravate a disciplinary penalty. Cir. That translates into harsher penalties for repeat offenders. The result will turn on the specifics of your case and the procedural posture as well. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Consistency of the penalty with any applicable agency table of penalties; 8. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? How do you handle these aggravating factors? Discipline can range from letters of reprimand to short suspensions. -What kind of recovery can I get in my discrimination case? The first time an employee is 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? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. (Use sample 1). This Douglas factor is important and we use this argument in our representation of federal employees. 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. Sometimes management may misapply factors, or misconstrue them. 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. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 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. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The Federal Starr is a publication by Starr Wright USA. %%EOF 280, 302 (1981). For example, a law enforcement officer is charged with enforcing laws. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. A supervisor cannot just say it; he/she has to prove it. Managers and supervisors should properly document the employee misconduct. Factor: Notoriety and impact 3. 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. The more notorious the offense you commit the more severe the discipline you will face. The reason(s) for this action is (are) specified below. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. If this is impractical to do, use Sample 2. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. 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? A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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). Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . If you have been disciplined before you will face harsher discipline going forward. A well presented reply to theproposed discipline can lead to substantial mitigation. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 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? If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. Before sharing sensitive information, make sure youre on a federal government site. Govexec.com . Douglas Factors matters vary from case to case and federal employees should consult with an attorney. EachDouglas Factor can work for or against an employee depending on their specific case. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Do you need a table of penalties in OPM? See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 290 (1981). 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. Did the employee have access to a handbook that detailed proper procedure and policy? 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. Suite 305 Sample: Specification #1. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. Relevant? What kind of recovery can I get in my discrimination case? 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Factor: Consistency with table of penalties 2. 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. . 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Cir. 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 . For more information, visit WrightUSA.com. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? hbbd``b`:$ Hd V$D? 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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. Misconduct is also considered more severe if it is done maliciously or for personal gain. Can an employee take responsibility, correct their behavior and come back to the job? Specification #2. 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. 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. Cir. A mitigating factor is one that suggests the discipline be mitigated, or lowered. WA 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 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. 2015). Don't force misconduct into a listed offense unless it accurately fits. These factors are: 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. Your job as an employee is to support your position as best as you possibly can. affidavits, performance ratings, SF-50s, letters of commendation) for the record. The Douglas Factors . Relevant? Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Reston, VA 20190. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Remain calm, deferential and respectful at all times. 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. a. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. There are certain standards of behavior and conduct expected of employees by our external and internal customers. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. Any replies submitted will be given full consideration. In many cases, managers act as deciding officials in discipline cases. 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. 51, 8 (2001). Only relevant factors must be included. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 8.Douglas Factor Analysis. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. Lets say you missed a deadline for an important assignment and management has proposed removal. 3 Douglas v. Veterans Administration, 5 M.S.P.R. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Note. 2012) (internal citations and punctuation omitted). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. This table should be available to you as an employee. They know the stress of a career, they know how life can be difficult. ______________________________ __________________ (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. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Do not deny the existence of bad facts. 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. You need to look at the specifics of your case in light of the twelve factors. 10 Ward v. U.S. With responsibility comes greater obligation and scrutiny. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. A deciding official must consider specific factors in determining the reasonableness of the penalty. 2278 0 obj <>stream Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. However, if you properly argue this factor it can go a long way towards helping your case. 7 Douglas v. Veterans Administration, 5 M.S.P.R.