Employees who can appeal an adverse action to the Board have constitutional due process rights. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Did management send out a memo clarifying rules? Heres what anyone who works for the federal government needs to know about the Douglas Factors. Offenses related to intoxicants. See U.S. hb```f``2c`a`,c`@ r, ^Ma These are known as Douglas factors. 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. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. -What kind of recovery can I get in my discrimination case? 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. However, if you properly argue this factor it can go a long way towards helping your case. 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. Additionally, your coworkers have their own assignments. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. That translates into harsher penalties for repeat offenders. This factor looks to the status of the employee. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. 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. posted June 9, 2003. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Check with your labor relations advisor. Obtain insurance protection for your career today. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Relevant? But do not highlight them either. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 0 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? Factor 3: The employees past disciplinary record. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ %PDF-1.5 % 49 0 obj <> endobj 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; . 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. But they may refuse to. 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 nature and seriousness of the offense, and its relationship to the employee's . See Douglas v. Veterans Administration, 5 M.S.P.R. Just knowing the rules, however, cant fully protect you if a case should arise. The first time an employee is 5 Douglas v. Veterans Administration, 5 M.S.P.R. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . (Use sample 1). The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). removal). The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. This factor is generally an afterthought for both management and employees. 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). Govexec.com . Similar offenses can be used to guide penalty selection. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. By William N. Rudman . <> Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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 . Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 1999). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. Did the employee have access to a handbook that detailed proper procedure and policy? Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. Specification #2. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. Only relevant factors must be included. Cir. 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. Can an employee take responsibility, correct their behavior and come back to the job? To some extent, this is a subjective question. 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? In addition, actions . Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 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. You neither came to work nor did you call in your absence. Consistency of the penalty with any table of penalties an agency may have . 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. 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. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. You neither came to work nor did you call in your absence. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). hbbd``b`:$ Hd V$D? This one is pretty self-explanatory. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. 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. 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 Remain calm, deferential and respectful at all times. The reason(s) for this action is (are) specified below. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. The Douglas factors are: (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; The Douglas Factors should be considered in selecting a penalty. 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 notoriety of the offense or its impact upon the reputation of the agency; . Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. With responsibility comes greater obligation and scrutiny. The key is credibility. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. Discipline can range from letters of reprimand to short suspensions. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Factor: Nature and seriousness 9. 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. A Table of Penalties is a list of . The Douglas Factors . 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. Berry & Berry PLLC. How does action taken promote the efficiency of the service? If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Whether you use two charges in this case will depend upon the evidence available. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. stream Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. 2 0 obj Reston, VA 20190. Relevant? The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. What is effect of the misconduct charged? The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Sample 1: I have attached the material relied on to support this proposed removal. Discipline can range from letters of reprimand to short suspensions. The fourth Douglas Factor requires managers to take an employees past performance into account. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 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. Let me give you an example. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. COPYRIGHT 2023. This table should be available to you as an employee. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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 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). 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. 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. 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. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors.
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