Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Factor: Consistency with table of penalties 2. Cir. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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. 2278 0 obj <>stream 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). Any personal issues going on around the time of the misconduct should be brought to the attention of management. If this is impractical to do, use Sample 2. 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. endstream endobj startxref Ultimately, managers are people too. Only those Douglas Factors relevant to each case need be considered. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. The Douglas Factors . 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. removal). Additionally, this factor looks at intent. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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. Remain calm, deferential and respectful at all times. 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). 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. 280 (1981) These factors are used to explain why the penalty was chosen. 8.Douglas Factor Analysis. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Your job as an employee is to support your position as best as you possibly can. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. If you are low level employee with no supervisory functions this factor should have some mitigating value. 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 . The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . <> You will be notified in writing of the final decision. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 10 Ward v. U.S. Discipline can range from letters of reprimand to short suspensions. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Why can such behavior not be tolerated? 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). 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. 4 0 obj Sample: Specification #1. 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. Can someone help me present the Douglas Factors to management? Any replies submitted will be given full consideration. Sample 2: You have the right to review the material relied on to support this proposed removal. COPYRIGHT 2023. On (DATE), you were scheduled to report to work at (TIME). Managers must take an employees propensity for rehabilitation into account. If you list a factor you must explain why it is relevant. Relevant? 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. 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 . 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 . For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. If the person signed for receipt of the letter include that information. 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. The site is secure. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Conclusions and vague statements do not hold much weight with third parties. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Cir. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. In some instances, you may want to request that management reconsider your case. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Cir. 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 The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. But they may refuse to. 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. -What kind of recovery can I get in my discrimination case? Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 280, 290 (1981). * Douglas v. Veterans Administration, 5 M.S.P.R. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating 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. Negligent or accidental incidents will be viewed more favorably than intentional acts. You neither came to work nor did you call in your absence. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Your absence was not approved by your supervisor. 1999). The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Relevant? The more notorious the offense you commit the more severe the discipline you will face. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Starr Wright USA is the nations leading provider of FEPLI. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. a. 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. 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). %PDF-1.5 % Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Sample 1: I have attached the material relied on to support this proposed removal. For example, a law enforcement officer is charged with enforcing laws. 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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. Check with your labor relations advisor. 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; . The key is credibility. Don't force misconduct into a listed offense unless it accurately fits. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 51, 8 (2001). As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Berry & Berry PLLC. 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. However, if you properly argue this factor it can go a long way towards helping your case. An official website of the United States government. Has an employee been on the job for a long time? If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. They know the stress of a career, they know how life can be difficult. What kind of recovery can I get in my discrimination case? 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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 . This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. These 12 factors play a key role in the outcome of federal employee discipline cases. 502, 508 (1994) (holding that because 31 U.S.C. The first time an employee is Can an employee take responsibility, correct their behavior and come back to the job? A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. 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. On (DATE), you were scheduled to report to work at (TIME). Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. hb```f``2c`a`,c`@ r, ^Ma 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. 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 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? %%EOF As a general rule, the more negative publicity caused by an offense, the harsher the discipline. What every federal employee facing discipline should be familiar with: The Douglas Factors. Relevant? 280 (1981) These factors are used to explain why the penalty was chosen. Relevant? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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). 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Whether you use two charges in this case will depend upon the evidence available. ______________________________ __________________ (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. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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 0 Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. stream 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? Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. %PDF-1.6 % The nature and seriousness of the offense, and its relationship to the employee's . 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 . Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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.