If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . In addition, actions . 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. Cir. You neither came to work nor did you call in your absence. 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. Did management send out a memo clarifying rules? COPYRIGHT 2023. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. The employee's job level and type of employment . For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. 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. By William N. Rudman . 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. For example, an allegation of dishonesty would be treated . 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 . Why can such behavior not be tolerated? 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. Do they have a positive track record? The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. Suite 305 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. This table should be available to you as an employee. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. What kind of recovery can I get in my discrimination case? These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 11700 Plaza America Drive These are known as Douglas factors. <> The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Conclusions and vague statements do not hold much weight with third parties. It is important to rebut these issues in a Douglas factor defense. To some extent, this is a subjective question. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. 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. That translates into harsher penalties for repeat offenders. 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. %PDF-1.5 % 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. 280 (1981) These factors are used to explain why the penalty was chosen. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. These 12 factors play a key role in the outcome of federal employee discipline cases. 72 0 obj <>stream Which is why Federal Employee Professional Liability Insurance is critical. They likely held the same job you holdat some point in the past. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. 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. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 10 Ward v. U.S. 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. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Deciding officials should do a Douglas analysis in every case, except when Congress . Relevant? Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Let me give you an example. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Only relevant factors must be included. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 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? In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Relevant? <>/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>> 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). If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. For more information, visit WrightUSA.com. 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. In some instances, you may want to request that management reconsider your case. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. This has often been considered one of the most important Douglas factors by the MSPB. What every federal employee facing discipline should be familiar with: The Douglas Factors. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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 Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Cir. 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. !%7K81E8zi. Plaza America On (DATE), you were scheduled to report to work at (TIME). At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. We are currently not taking any new cases at this time. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. Ultimately, managers are people too. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. endobj EachDouglas Factor can work for or against an employee depending on their specific case. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? A deciding official must consider specific factors in determining the reasonableness of the penalty. If you are looking for a representative, note that we are not taking on any cases at this time. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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. 3 0 obj WA Federal agencies may take disciplinary action against employees who engage in misconduct. Cir. 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. The Federal Starr is a publication by Starr Wright USA. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Factor 10: Potential for the employees rehabilitation. 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; . Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Whether you use two charges in this case will depend upon the evidence available. what extent, the "Douglas" factors come into play or how egregious the act was. 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. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). 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. %PDF-1.5 ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. 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. However, despite the importance of these criteria, many employees arent familiar with them. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Your absence was not approved by your supervisor. ^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. Regardless, try to avoid getting into an argument with management over factors. 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. . the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 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. 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). The site is secure. This Douglas factor is not one of the more commonly cited Douglas factors. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 0 Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Sometimes management may misapply factors, or misconstrue them. . U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Relevant? If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. 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 . Cir. This article covers the Douglas Factors. 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. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 280, 302 (1981). Specific evidence/testimony as to why an employee can no longer be trusted is critical. However, if you properly argue this factor it can go a long way towards helping your case. Remain calm, deferential and respectful at all times. h[M+}LX,? 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. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 49 0 obj <> endobj An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 1999). Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Negligent or accidental incidents will be viewed more favorably than intentional acts. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. @b o $&F Sq70 # With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. This Douglas factor is important and we use this argument in our representation of federal employees. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? accruing multiple instances of discipline can lead you on the fast track to removal from federal service. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). Sample 1: I have attached the material relied on to support this proposed removal. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$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:#/ 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. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. This factor is generally an afterthought for both management and employees. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. An official website of the United States government. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream How does action taken promote the efficiency of the service? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Other times it may mean providing some evidence to management to further support your position. Similar offenses can be used to guide penalty selection. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? Relevant? [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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. 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. Employees who can appeal an adverse action to the Board have constitutional due process rights. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. The idea is that discipline is meantto be corrective and progressive. See Douglas v. Veterans Administration, 5 M.S.P.R. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. The national media picked the story up, and it was very detrimental to the agency. A well presented reply to theproposed discipline can lead to substantial mitigation. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees.
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