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 . 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 reason(s) for this action is (are) specified below. endobj It is important to rebut these issues in a Douglas factor defense. unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. 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. 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). 7 Douglas v. Veterans Administration, 5 M.S.P.R. Can someone help me present the Douglas Factors to management? 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. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. 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. h[M+}LX,? These terms are used commonly in Douglas Factors application. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Cir. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! For instance, did the employee have access to the table of penalties? (Use sample 1). 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. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 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 Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. Cir. 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 . . removal). past performance). Your absence was not approved by your supervisor. Relevant? A mitigating factor is one that suggests the discipline be mitigated, or lowered. We need to specifically state why there is erosion of supervisory confidence. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Private sector cases are drastically different. 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 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. This Factor takes mitigating circumstances into account. However, the principle of "like penalties for like offenses" does not require perfect consistency. . stream A deciding official must consider specific factors in determining the reasonableness of the penalty. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. %PDF-1.5 The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. Such cases call into question an employees ability to perform their specific job duties with integrity. 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. Additionally, this factor looks at intent. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Only those Douglas Factors relevant to each case need be considered. See Douglas v. Veterans Administration, 5 M.S.P.R. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. 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. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. These 12 factors play a key role in the outcome of federal employee discipline cases. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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. Federal agencies may take disciplinary action against employees who engage in misconduct. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 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. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. On (DATE), you were scheduled to report to work at (TIME). Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. This has often been considered one of the most important Douglas factors by the MSPB. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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. 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. 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. Factor: Nature and seriousness 9. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. Contact your employee relations advisor to get the information to fill in the blanks. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 51, 8 (2001). Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 72 0 obj <>stream But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . However, if you properly argue this factor it can go a long way towards helping your case. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 2012) (internal citations and punctuation omitted). You should not list a factor unless it is relevant. Has an employee been on the job for a long time? 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. The Federal Starr is a publication by Starr Wright USA. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. 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. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. MSPB decision. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Govexec.com . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . But they may refuse to. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. It is important that you really highlightthefactors that are in your favor. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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.
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