Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. You need to look at the specifics of your case in light of the twelve factors. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 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. Managers must take an employees propensity for rehabilitation into account. 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. what extent, the "Douglas" factors come into play or how egregious the act was. Such cases call into question an employees ability to perform their specific job duties with integrity. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. 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. 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 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; . A mitigating factor is one that suggests the discipline be mitigated, or lowered. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Before sharing sensitive information, make sure youre on a federal government site. Can someone help me present the Douglas Factors to management? A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. The nature and seriousness of the offense, and its relationship to the employee's . past performance). endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. This factor looks to the status of the employee. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r The national media picked the story up, and it was very detrimental to the 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). Starr Wright USA is the nations leading provider of FEPLI. 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 This means you should provide objective facts to support your arguments if you can. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Your absence was not approved by your supervisor. 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 employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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 potential for the employees rehabilitation; 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; and. 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? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. How the factors will be applied in your disciplinary case depends on the specifics of your case. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. xfg! 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? They know the stress of a career, they know how life can be difficult. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 10 Ward v. U.S. Relevant? 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. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. Your job as an employee is to support your position as best as you possibly can. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Also any awards or accolades the employee has would be mitigating in nature. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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. The employee's job level and type of employment . -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. removal). Did management send out a memo clarifying rules? . If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. For instance, did the employee have access to the table of penalties? 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Has an employee been on the job for a long time? Regardless, try to avoid getting into an argument with management over factors. We need to specifically state why there is erosion of supervisory confidence. 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. Consistency of the penalty with any table of penalties an agency may have . The right to answer orally does not include the right to a formal hearing with examination of witnesses. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. a. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). By William N. Rudman . The Douglas Factors . If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. Cir. Relevant? 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. A supervisor cannot just say it; he/she has to prove it. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 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. 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. Whether you use two charges in this case will depend upon the evidence available. Relevant? For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Note. On (DATE), you were scheduled to report to work at (TIME). If this is impractical to do, use Sample 2. Other times it may mean providing some evidence to management to further support your position. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . With responsibility comes greater obligation and scrutiny. Yes___ No____This factor is one of the more technically difficult to apply. Factor 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 Cir. 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. (Use sample 1). 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. Relevant? 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. You should not list a factor unless it is relevant. 280, 305-06 (1981). You neither came to work nor did you call in your absence. 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. 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. Douglas Factor Analysis. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P