Relevant? It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. However, if you properly argue this factor it can go a long way towards helping your case. 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. 7 Douglas v. Veterans Administration, 5 M.S.P.R. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. Factor 10: Potential for the employees rehabilitation. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 3 0 obj This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. MSPB decision. For example, a law enforcement officer is charged with enforcing laws. Relevant? For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. 10 Ward v. U.S. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Merit Systems Protection Board still follows today. 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. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. The nature and seriousness of the offense, and its relationship to the employee's . 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. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Managers must take an employees propensity for rehabilitation into account. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The Douglas factors 8. %%EOF One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. The national media picked the story up, and it was very detrimental to the agency. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 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. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. The Table provides for more serious penalties for . Cir. Remain calm, deferential and respectful at all times. 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. ALL RIGHTS RESERVED. But they may refuse to. 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. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. You neither came to work nor did you call in your absence. 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). disciplinary situations. 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? 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. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. 0 removal). 2278 0 obj <>stream Consistency of the penalty with any table of penalties an agency may have . Regardless, try to avoid getting into an argument with management over factors. %PDF-1.5 % The Douglas Factors . This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. <> Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. 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. 9 Ward v. U.S. -What kind of recovery can I get in my discrimination case? The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. This table should be available to you as an employee. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. 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. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. How does action taken promote the efficiency of the service? 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Obtain insurance protection for your career today. To some extent, this is a subjective question. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Factor 3: The employees past disciplinary record. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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? Plaza America 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Starr Wright USA is the nations leading provider of FEPLI. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Visit WrightUSA.com to start your policy! The Douglas Factors should be considered in selecting a penalty. 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 Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Cir. 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. Before sharing sensitive information, make sure youre on a federal government site. If you want you can download and read the fullDouglas v. V.A. 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Offenses related to intoxicants. What is effect of the misconduct charged? This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. But do not highlight them either. 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. Your absence was not approved by your supervisor. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream If you are looking for a representative, note that we are not taking on any cases at this time. Factor 6: 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; 8. Ultimately, the more credible evidence you can provide to support your position the better. A Table of Penalties is a list of . Factor: Employee's . 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Your absence was not approved by your supervisor. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Your job as an employee is to support your position as best as you possibly can. endstream endobj startxref Employees who can appeal an adverse action to the Board have constitutional due process rights. Reston, VA 20190. 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. 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. For more information, visit WrightUSA.com. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The Federal Starr is a publication by Starr Wright USA. A well presented reply to theproposed discipline can lead to substantial mitigation. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. EachDouglas Factor can work for or against an employee depending on their specific case. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. They likely held the same job you holdat some point in the past. Federal government websites often end in .gov or .mil. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Additionally, this factor looks at intent. In some instances, you may want to request that management reconsider your case. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Relevant? A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Has an employee been on the job for a long time? hb```f``2c`a`,c`@ r, ^Ma 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 Douglas factors are also referred to as mitigating factors. With responsibility comes greater obligation and scrutiny. 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. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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). The more notorious the offense you commit the more severe the discipline you will face. See Douglas v. Veterans Administration, 5 M.S.P.R. These factors are: 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. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. This one is pretty self-explanatory. a. You should review the table to make sure that your discipline is in keeping with this table. what extent, the "Douglas" factors come into play or how egregious the act was. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Govexec.com . Be clear, terse, and apologetic. Sample 2: You have the right to review the material relied on to support this proposed removal. On the surface, many incidents of misconduct may seem to be similar. 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. 2015). B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Sometimes management may misapply factors, or misconstrue them. On (DATE), you were scheduled to report to work at (TIME). Specification #2. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. posted June 9, 2003. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. These factors are the following: 1. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 1985). Which is why Federal Employee Professional Liability Insurance is critical. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. This has often been considered one of the most important Douglas factors by the MSPB. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$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:#/ Misconduct is also considered more severe if it is done maliciously or for personal gain. 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. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace.
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