Misconduct is also considered more severe if it is done maliciously or for personal gain. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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. 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. 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. Conclusions and vague statements do not hold much weight with third parties. Relevant? removal). 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. past performance). Relevant? Yes___ No____This factor is one of the more technically difficult to apply. ______________________________ __________________ (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. 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. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. See U.S. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . endstream endobj startxref An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. -What kind of recovery can I get in my discrimination case? -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Relevant? The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). * Douglas v. Veterans Administration, 5 M.S.P.R. 4 0 obj Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Let me give you an example. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Offenses related to intoxicants. If you list a factor you must explain why it is relevant. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Explanation, if relevant: (11) 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.Relevant? 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Factor 3: The employees past disciplinary record. Reston, VA 20190. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 7 Douglas v. Veterans Administration, 5 M.S.P.R. \|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. Any replies submitted will be given full consideration. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. 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 . A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 8.Douglas Factor Analysis. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. In theory, discipline should be both corrective and progressive. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Managers must apply penalties that are similar to those imposed in like cases. what extent, the "Douglas" factors come into play or how egregious the act was. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. 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. 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:#/ 10 Ward v. U.S. 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. How the factors will be applied in your disciplinary case depends on the specifics of your case. If you are looking for a representative, note that we are not taking on any cases at this time. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 3 0 obj But do not highlight them either. The nature and seriousness of the offense, and its relationship to the employee's . Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. (Use sample 1). What every federal employee facing discipline should be familiar with: The Douglas Factors. 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 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. 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). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Be clear, terse, and apologetic. Relevant? The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Factor: Employee's . Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001).

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