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This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. xfg! However, if you properly argue this factor it can go a long way towards helping your case. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Cir. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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 . The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. You neither came to work nor did you call in your absence. 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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! In many cases, managers act as deciding officials in discipline cases. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. This is because it puts you on notice of the penalties which is factor #9, below. The site is secure. It is more often used to attempt to aggravate a disciplinary penalty. Consistency of the penalty with any table of penalties an agency may have . . You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Your job as an employee is to support your position as best as you possibly can. The Douglas factors are: (1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; 7 Douglas v. Veterans Administration, 5 M.S.P.R. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. Factor: Consistency with table of penalties 2. On (DATE), you were scheduled to report to work at (TIME). In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The .gov means its official. This article covers the Douglas Factors. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$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:#/ 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 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. Factor: Notoriety and impact 3. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. Consistency of the penalty with any applicable agency table of penalties; 8. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may 11700 Plaza America Drive 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. How the factors will be applied in your disciplinary case depends on the specifics of your case. For instance, did the employee have access to the table of penalties? These terms are used commonly in Douglas Factors application. 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. 0 The Douglas factors are also referred to as mitigating factors. If you are looking for a representative, note that we are not taking on any cases at this time. 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). MSPB decision. The Table provides for more serious penalties for . Many federal agencies maintain tables of penalties that detail discipline options for common 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). 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 Douglas Factors . Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 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. You should review the table to make sure that your discipline is in keeping with this table. We need to specifically state why there is erosion of supervisory confidence. Which is why Federal Employee Professional Liability Insurance is critical. Reston, VA 20190. endobj Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Let me give you an example. past performance). How do you handle these aggravating factors? the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. However, despite the importance of these criteria, many employees arent familiar with them. 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. 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. Factor 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. 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. 1 0 obj Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. It is important to rebut these issues in a Douglas factor defense. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. EachDouglas Factor can work for or against an employee depending on their specific case. The idea is that discipline is meantto be corrective and progressive. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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 . 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. These are known as Douglas factors. The employee's job level and type of employment . @b o $&F Sq70 # % One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Also any awards or accolades the employee has would be mitigating in nature. If this is impractical to do, use Sample 2. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Relevant? Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Sample: Specification #1. 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. This Quick Start Guide covers the following Key Points: 1. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Lets say you missed a deadline for an important assignment and management has proposed removal. %PDF-1.5 % 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. See U.S. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. a. Contact your employee relations advisor to get the information to fill in the blanks. The Douglas Factors . 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. . Only those Douglas Factors relevant to each case need be considered. Relevant? An overlooked factabout the cost of hiring an attorney is that they can actually save you money. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. 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. <> @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . 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 one is pretty self-explanatory. Postal Service, 634 F.3d 1274, 1282 (Fed. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. A mitigating factor is one that suggests the discipline be mitigated, or lowered. 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. 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.