If this is impractical to do, use Sample 2. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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. 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; . Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Note. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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 Did management send out a memo clarifying rules? Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Federal government websites often end in .gov or .mil. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. 280 (1981) These factors are used to explain why the penalty was chosen. What is effect of the misconduct charged? This Factor takes mitigating circumstances into account. 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. If you are looking for a representative, note that we are not taking on any cases at this time. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. COPYRIGHT 2023. h[M+}LX,? Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. Factor 3: The employees past disciplinary record. Heres what anyone who works for the federal government needs to know about the Douglas Factors. You need to look at the specifics of your case in light of the twelve factors. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . You should review the table to make sure that your discipline is in keeping with this table. Internal Control Evaluation, page 21 . Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). For more information, visit WrightUSA.com. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Sample 1: I have attached the material relied on to support this proposed removal. Cir. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Ultimately, managers are people too. 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. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. This has often been considered one of the most important Douglas factors by the MSPB. 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. 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. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. 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? But do not highlight them either. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Visit WrightUSA.com to start your policy! For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P <> For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 280 (1981) These factors are used to explain why the penalty was chosen. 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. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Similar offenses can be used to guide penalty selection. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. This Quick Start Guide covers the following Key Points: 1. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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 . As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. The Douglas Factors . xfg! The final Douglas Factor asks both manager and employee to consider alternative penalties. 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. 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 280, 302 (1981). 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. The .gov means its official. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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? Did the employee have access to a handbook that detailed proper procedure and policy? What kind of recovery can I get in my discrimination case? Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Employees who can appeal an adverse action to the Board have constitutional due process rights. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. For instance, did the employee have access to the table of penalties? For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. removal). Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Can someone help me present the Douglas Factors to management? Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. The nature and seriousness of the offense, and its relationship to the employee's . @b o $&F Sq70 # Cir. 1 0 obj What every federal employee facing discipline should be familiar with: The Douglas Factors. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). 3 Douglas v. Veterans Administration, 5 M.S.P.R. 72 0 obj <>stream It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! All other penalty determinations should undergo thorough reasoning under the Douglas Factors. A supervisor cannot just say it; he/she has to prove it. 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. 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Conclusions and vague statements do not hold much weight with third parties. 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. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. In addition, actions . 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 . We need to specifically state why there is erosion of supervisory confidence. 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. Berry & Berry PLLC. 11700 Plaza America Drive The Douglas Factors should be considered in selecting a penalty. Other times it may mean providing some evidence to management to further support your position. <>>> Douglas Factor Analysis. 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 In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. 0 Sample 2: You have the right to review the material relied on to support this proposed removal. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Check with your labor relations advisor. 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. 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. The Douglas factors are also referred to as mitigating factors. 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. The key is credibility. 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. 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. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. . To some extent, this is a subjective question. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 49 0 obj <> endobj These factors are the following: 1. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Let me give you an example. 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. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. You should not list a factor unless it is relevant. endobj In some instances, you may want to request that management reconsider your case. 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. The more notorious the offense you commit the more severe the discipline you will face. Additionally, this factor looks at intent. The employee's job level and type of employment . Factor 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. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Only those Douglas Factors relevant to each case need be considered. Suite 305 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. 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. Cir. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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? Managers must also consider the scope of the misconduct in the context of an employees position and job duties. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Only relevant factors must be included. 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. endobj Be clear, terse, and apologetic. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Can an employee take responsibility, correct their behavior and come back to the job? 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. 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. 2012) (internal citations and punctuation omitted). It is important that you really highlightthefactors that are in your favor. 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 . 8.Douglas Factor Analysis. 1985). You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Your absence was not approved by your supervisor. If you are low level employee with no supervisory functions this factor should have some mitigating value. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). 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. past performance). We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. EAP can be reached by calling 1-800-XXX-XXXX. 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 . Cir. 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.
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