Do they have a positive track record? 2 0 obj
This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Sample 1: I have attached the material relied on to support this proposed removal. . What every federal employee facing discipline should be familiar with: The Douglas Factors. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Only those Douglas Factors relevant to each case need be considered. past performance). 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. removal). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 2012) (internal citations and punctuation omitted). This one is pretty self-explanatory. 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). The Douglas Factors should be considered in selecting a penalty. A Table of Penalties is a list of . 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. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 10 Ward v. U.S. These are known as Douglas factors. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. Govexec.com . In many cases, managers act as deciding officials in discipline cases. 0
Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? The notoriety of the offense or its impact upon the reputation of the Agency; 9 . In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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:
(2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the 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. By William N. Rudman . 14.CC:s
CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC:
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/ 0 1 2 3 ? If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Cir. If you are looking for a representative, note that we are not taking on any cases at this time. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. On (DATE), you were scheduled to report to work at (TIME). The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Can an employee take responsibility, correct their behavior and come back to the job? Employees who can appeal an adverse action to the Board have constitutional due process rights. Do not deny the existence of bad facts. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Explanation, if relevant:
(3) The employee's past disciplinary record.Relevant? As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. With responsibility comes greater obligation and scrutiny. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. When looking for an attorney make sure they have experience handling federal-sector employment cases. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 3 Douglas v. Veterans Administration, 5 M.S.P.R. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). 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? Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Can someone help me present the Douglas Factors to management? Any personal issues going on around the time of the misconduct should be brought to the attention of management. 4 0 obj
Whether you use two charges in this case will depend upon the evidence available. But do not highlight them either. 64 0 obj
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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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. endobj
EachDouglas Factor can work for or against an employee depending on their specific case. Factor 10: Potential for the employees rehabilitation. Specific evidence/testimony as to why an employee can no longer be trusted is critical. They likely held the same job you holdat some point in the past. This Douglas factor is not one of the more commonly cited Douglas factors. For example, a law enforcement officer is charged with enforcing laws. 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. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Note. Cir. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Yes___
No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Postal Service, 634 F.3d 1274, 1282 (Fed. The national media picked the story up, and it was very detrimental to the agency. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Which is why Federal Employee Professional Liability Insurance is critical. If the person signed for receipt of the letter include that information. If you list a factor you must explain why it is relevant. The site is secure. Federal agencies may take disciplinary action against employees who engage in misconduct. 280, 305-06 (1981). 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 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? posted June 9, 2003. What kind of recovery can I get in my discrimination case? 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. On the surface, many incidents of misconduct may seem to be similar. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Berry & Berry PLLC. 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. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. This means you should provide objective facts to support your arguments if you can. 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 . what extent, the "Douglas" factors come into play or how egregious the act was. %PDF-1.5
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Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Managers must apply penalties that are similar to those imposed in like cases. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. You should not list a factor unless it is relevant. Factor 3: The employees past disciplinary record. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Private sector cases are drastically different. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Starr Wright USA is the nations leading provider of FEPLI. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 7 Douglas v. Veterans Administration, 5 M.S.P.R. A well presented reply to theproposed discipline can lead to substantial mitigation. Don't force misconduct into a listed offense unless it accurately fits. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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. A supervisor cannot just say it; he/she has to prove it. Consistency of the penalty with any table of penalties an agency may have . 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. 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. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. ______________________________ __________________
(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. 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.