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 . However, the principle of "like penalties for like offenses" does not require perfect consistency. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 1 0 obj Any replies submitted will be given full consideration. 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 key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. MSPB decision. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. While each case is different, seeking alternatives may be useful. 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. 0 Ultimately, managers are people too. 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 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. 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. Discipline can range from letters of reprimand to short suspensions. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. This has often been considered one of the most important Douglas factors by the MSPB. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. Just knowing the rules, however, cant fully protect you if a case should arise. Regardless, try to avoid getting into an argument with management over factors. PDF Committee on Oversight and Government Reform U.S. House of We are currently not taking any new cases at this time. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. If the person signed for receipt of the letter include that information. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. This article covers the Douglas Factors. PDF The Douglas Factors - National Federation of Federal Employees Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. But do not highlight them either. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. The Douglas factors 8. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. With responsibility comes greater obligation and scrutiny. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. Relevant? It is important to rebut these issues in a Douglas factor defense. Managers and supervisors should properly document the employee misconduct. The Douglas Factors include: 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Relevant? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. PDF Chapter 4. Hud Table of Offenses and Penalties Relevant? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Before sharing sensitive information, make sure youre on a federal government site. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. <> 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. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. You should review the table to make sure that your discipline is in keeping with this table. Did management send out a memo clarifying rules? EachDouglas Factor can work for or against an employee depending on their specific case. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. posted June 9, 2003. Deciding officials should do a Douglas analysis in every case, except when Congress . Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. . Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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. 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). Factor: Nature and seriousness 9. 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. Douglas Factors - Postal Reporter Internal Control Evaluation, page 21 . Any personal issues going on around the time of the misconduct should be brought to the attention of management. Has an employee been on the job for a long time? 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. If you have been disciplined before you will face harsher discipline going forward. Cir. 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. Yes___ No____This factor is one of the more technically difficult to apply. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal 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 . 5 Douglas v. Veterans Administration, 5 M.S.P.R. -What kind of recovery can I get in my discrimination case? \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. 3 0 obj 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). The Douglas Factors should be considered in selecting a penalty. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 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. 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). Heres what anyone who works for the federal government needs to know about the Douglas Factors. PDF Douglas Factors In Depth - Letter Carrier Connection The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The Douglas Factors: Disciplining employees is a fact of life. See Douglas v. Veterans Administration, 5 M.S.P.R. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Managers must apply penalties that are similar to those imposed in like cases. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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 . The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Sample: Specification #1. Specific evidence/testimony as to why an employee can no longer be trusted is critical. How the factors will be applied in your disciplinary case depends on the specifics of your case. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. These terms are used commonly in Douglas Factors application. 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Such cases call into question an employees ability to perform their specific job duties with integrity. 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. Your absence was not approved by your supervisor. How does action taken promote the efficiency of the service? Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. The employee's job level and type of employment . If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Cir. The idea is that discipline is meantto be corrective and progressive. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. (Use sample 1). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. endobj Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 280 (1981) These factors are used to explain why the penalty was chosen. 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.