Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. The final Douglas Factor asks both manager and employee to consider alternative penalties. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 2015). 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. If the person signed for receipt of the letter include that information. Managers must apply penalties that are similar to those imposed in like cases. 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. Negligent or accidental incidents will be viewed more favorably than intentional acts. The more notorious the offense you commit the more severe the discipline you will face. The Douglas factors are also referred to as mitigating factors. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. This one is pretty self-explanatory. 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. You neither came to work nor did you call in your absence. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary 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. <> As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Sample 1: I have attached the material relied on to support this proposed removal. disciplinary situations. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. 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. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Can someone help me present the Douglas Factors to management? 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. However, despite the importance of these criteria, many employees arent familiar with them. An official website of the United States government. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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. If you want you can download and read the fullDouglas v. V.A. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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 . 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. past performance). A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. ALL RIGHTS RESERVED. Has an employee been on the job for a long time? Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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). 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Postal Service, 634 F.3d 1274, 1279 (Fed. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. stream 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? <>>> 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. 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 ? 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 For more information, visit WrightUSA.com. Consistency of the penalty with any table of penalties an agency may have . Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 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. 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). 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. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Cir. Factor: Employee's . Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Plaza America 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. With responsibility comes greater obligation and scrutiny. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Agency's table of penalties recognizes this severity in establishing ranges of penalties for These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. What kind of recovery can I get in my discrimination case? 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. This has often been considered one of the most important Douglas factors by the MSPB. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. 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. 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. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. . 1999). Cir. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Ultimately, managers are people too. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. 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). We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Factor: Nature and seriousness 9. Federal government websites often end in .gov or .mil. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. This article covers the Douglas Factors. 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. This Douglas factor is not one of the more commonly cited Douglas 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. You will be notified in writing of the final decision. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. The employee's job level and type of employment . Check with your labor relations advisor. Only those Douglas Factors relevant to each case need be considered. Reston, VA 20190. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; 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; the notoriety of the offense or its impact upon the reputation of the agency; 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; the potential for the employees rehabilitation; mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Yes___ No____This factor is one of the more technically difficult to apply. 2 0 obj 72 0 obj <>stream For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 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 Discipline can range from letters of reprimand to short suspensions. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. How do you handle these aggravating factors? Additionally, this factor looks at intent. It is important that you really highlightthefactors that are in your favor. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Relevant? Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 2278 0 obj <>stream 8.Douglas Factor Analysis. %PDF-1.5 % 0 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. In many cases, managers act as deciding officials in discipline cases. 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. 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. On (DATE), you were scheduled to report to work at (TIME). 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Relevant? 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. 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. Contact your employee relations advisor to get the information to fill in the blanks. For example, an allegation of dishonesty would be treated . For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. The idea is that discipline is meantto be corrective and progressive. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. It is important to rebut these issues in a Douglas factor defense.
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