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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 table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. 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. If you are looking for a representative, note that we are not taking on any cases at this time. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 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 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 . For instance, did the employee have access to the table of penalties? Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The employee's job level and type of employment . The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Factor: Consistency with table of penalties 2. 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. These factors are the following: 1. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Cir. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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). [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. A well presented reply to theproposed discipline can lead to substantial mitigation. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 8.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. Sample 1: I have attached the material relied on to support this proposed removal. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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. 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Misconduct is also considered more severe if it is done maliciously or for personal gain. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. 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. 51, 8 (2001). Federal government websites often end in .gov or .mil. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Negligent or accidental incidents will be viewed more favorably than intentional acts. MSPB decision. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. What is effect of the misconduct charged? 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Cir. Starr Wright USA is the nations leading provider of FEPLI. What every federal employee facing discipline should be familiar with: The Douglas Factors. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. 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. 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. 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. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. An official website of the United States government. 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. By William N. Rudman . 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 . Factor: Employee's . 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Managers must take an employees propensity for rehabilitation into account. Additionally, this factor looks at intent. This factor looks to the status of the employee. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Deciding officials should do a Douglas analysis in every case, except when Congress . Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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. 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? 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. 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? B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Consistency of the penalty with any applicable agency table of penalties; 8. Specification #2. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Cir. That translates into harsher penalties for repeat offenders. It is important that you really highlightthefactors that are in your favor. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. 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 . With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. a. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$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:#/ However, the principle of "like penalties for like offenses" does not require perfect consistency. However, despite the importance of these criteria, many employees arent familiar with them. 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. Relevant? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. The reason(s) for this action is (are) specified below. 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 . The .gov means its official. This is because it puts you on notice of the penalties which is factor #9, below. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Discipline can range from letters of reprimand to short suspensions. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Heres what anyone who works for the federal government needs to know about the Douglas Factors. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Merit Systems Protection Board still follows today. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. Your absence was not approved by your supervisor. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Just knowing the rules, however, cant fully protect you if a case should arise. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. This factor is generally an afterthought for both management and employees. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time.
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