By William N. Rudman . An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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 . { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. Similar offenses can be used to guide penalty selection. 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. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. 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. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Factor 10: Potential for the employees rehabilitation. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Also any awards or accolades the employee has would be mitigating in nature. 1 0 obj This article covers the Douglas Factors. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Heres what anyone who works for the federal government needs to know about the Douglas Factors. However, despite the importance of these criteria, many employees arent familiar with them. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. The Douglas Factors should be considered in selecting a penalty. They know the stress of a career, they know how life can be difficult. The right to answer orally does not include the right to a formal hearing with examination of witnesses. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. % 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. Sample 1: I have attached the material relied on to support this proposed removal. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Such cases call into question an employees ability to perform their specific job duties with integrity. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Douglas Factors for Federal Employees - berrylegal * Douglas v. Veterans Administration, 5 M.S.P.R. 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 . We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 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. If you list a factor you must explain why it is relevant. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 72 0 obj <>stream 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. Postal Service, 634 F.3d 1274, 1282 (Fed. Discipline can range from letters of reprimand to short suspensions. The Douglas Factors . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. PDF The Douglas Factors - United States Office of Personnel Management Specific evidence/testimony as to why an employee can no longer be trusted is critical. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. 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. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). To some extent, this is a subjective question. This Douglas factor is important and we use this argument in our representation of federal employees. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). These are known as Douglas factors. 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. stream In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 1999). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. <>>> 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. Federal agencies may take disciplinary action against employees who engage in misconduct. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. %PDF-1.5 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. Any replies submitted will be given full consideration. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. This is because it puts you on notice of the penalties which is factor #9, below. What if I do not agree with managements analysisof a specific Douglas Factor? One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Relevant? Can someone help me present the Douglas Factors to management? 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. 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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! This Factor takes mitigating circumstances into account. The nature and seriousness of the offense, and its relationship to the employee's . Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Only relevant factors must be included. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. 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. Obtain insurance protection for your career today. Cir. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? If you have been disciplined before you will face harsher discipline going forward. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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. removal). Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. 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 Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. Determining the Penalty - United States Merit Systems Protection Board Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Merit Systems Protection Board still follows today. When looking for an attorney make sure they have experience handling federal-sector employment cases. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. For more information, visit WrightUSA.com. 7 Douglas v. Veterans Administration, 5 M.S.P.R. That translates into harsher penalties for repeat offenders. It is important that you really highlightthefactors that are in your favor. 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. While each case is different, seeking alternatives may be useful. Relevant? The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Ultimately, the more credible evidence you can provide to support your position the better. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Management has likely even required you to review the table and sign a form asserting your knowledge of it. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 280, 305-06 (1981). 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. Contact your employee relations advisor to get the information to fill in the blanks. PDF DOI Department Manual Table of Offenses and Penalties Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Consistency of the penalty with any applicable agency table of penalties; 8. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees Douglas Factors matters vary from case to case and federal employees should consult with an attorney. @b o $&F Sq70 # 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. The employee's job level and type of employment . the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. 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. This factor lends itself most to employees arguing for leniency in their case. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. PDF The Douglas Factors - National Federation of Federal Employees 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. 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 . 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. <> As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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?
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