As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Postal Service, 634 F.3d 1274, 1282 (Fed. Specific evidence/testimony as to why an employee can no longer be trusted is critical. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Note. In many cases, managers act as deciding officials in discipline cases. 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. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. 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. Discipline can range from letters of reprimand to short suspensions. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 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. 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. EAP can be reached by calling 1-800-XXX-XXXX. Lets say you missed a deadline for an important assignment and management has proposed removal. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. An official website of the United States government. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Managers and supervisors should properly document the employee misconduct. But do not highlight them either. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. %PDF-1.5 Negligent or accidental incidents will be viewed more favorably than intentional acts. Factor 10: Potential for the employees rehabilitation. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 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. . Any personal issues going on around the time of the misconduct should be brought to the attention of management. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. Cir. removal). 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. 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. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. We are currently not taking any new cases at this time. How do you handle these aggravating factors? Do not deny the existence of bad facts. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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 . Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. Your absence was not approved by your supervisor. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. This is because it puts you on notice of the penalties which is factor #9, below. 11700 Plaza America Drive 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 means you should provide objective facts to support your arguments if you can. Federal government websites often end in .gov or .mil. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Be clear, terse, and apologetic. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The Table provides for more serious penalties for . the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. The Douglas Factors should be considered in selecting a penalty. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Such cases call into question an employees ability to perform their specific job duties with integrity. @b o $&F Sq70 # In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. The final Douglas Factor asks both manager and employee to consider alternative penalties. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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 employee's job level and type of employment . For instance, did the employee have access to the table of penalties? If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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 Contact your employee relations advisor to get the information to fill in the blanks. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. If you have been disciplined before you will face harsher discipline going forward. 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. 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. 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. Do they have a positive track record? 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 determining an appropriate . 49 0 obj <> endobj Ultimately, the more credible evidence you can provide to support your position the better. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 7 Douglas v. Veterans Administration, 5 M.S.P.R. See Douglas v. Veterans Administration, 5 M.S.P.R. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. MSPB decision. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . h[M+}LX,? You should not list a factor unless it is relevant. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. xfg! Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Check with your labor relations advisor. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. posted June 9, 2003. You need to look at the specifics of your case in light of the twelve factors. Only relevant factors must be included. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Plaza America Douglas Factor Analysis. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 280, 290 (1981). Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Employees who can appeal an adverse action to the Board have constitutional due process rights. The reason(s) for this action is (are) specified below. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Consistency of the penalty with any applicable agency table of penalties; 8. Suite 305 what extent, the "Douglas" factors come into play or how egregious the act was. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. The .gov means its official. Similar offenses can be used to guide penalty selection. But they may refuse to. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 2278 0 obj <>stream endobj 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. Can an employee take responsibility, correct their behavior and come back to the job? 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. past performance). With responsibility comes greater obligation and scrutiny. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Specification #2. Starr Wright USA is the nations leading provider of FEPLI. 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. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Additionally, this factor looks at intent. 51, 8 (2001). For more information, visit WrightUSA.com. Just knowing the rules, however, cant fully protect you if a case should arise. endobj In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. While each case is different, seeking alternatives may be useful. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. This one is pretty self-explanatory. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. If you are looking for a representative, note that we are not taking on any cases at this time. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Your absence was not approved by your supervisor. 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). The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. On the surface, many incidents of misconduct may seem to be similar. <>>> Consistency of the penalty with any table of penalties an agency may have . For example, an allegation of dishonesty would be treated . These are known as Douglas factors. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Managers must take an employees propensity for rehabilitation into account. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. You neither came to work nor did you call in your absence. %PDF-1.5 % In some instances, you may want to request that management reconsider your case. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 280 (1981) These factors are used to explain why the penalty was chosen. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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). 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. 280 (1981) These factors are used to explain why the penalty was chosen. 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? 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. The Douglas Factors: Disciplining employees is a fact of life. %%EOF The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? <> In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Explanation, if relevant: (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.Relevant?