As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Douglas Factor Analysis. 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. Which is why Federal Employee Professional Liability Insurance is critical. 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. 280, 305-06 (1981). 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Any personal issues going on around the time of the misconduct should be brought to the attention of management. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. However, if you properly argue this factor it can go a long way towards helping your case. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. ^K[i>P+hvSbfpNK"ly(O$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. Postal Service, 634 F.3d 1274, 1282 (Fed. This article covers the Douglas Factors. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. This factor looks to the status of the employee. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. The final Douglas Factor asks both manager and employee to consider alternative penalties. Consistency of the penalty with any table of penalties an agency may have . The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Your absence was not approved by your supervisor. Factor: Nature and seriousness 9. 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 If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 280, 290 (1981). It is important that you really highlightthefactors that are in your favor. 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. <>/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>> Cir. WA Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Do not deny the existence of bad facts. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. In many cases, managers act as deciding officials in discipline cases. 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. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. Sample 2: You have the right to review the material relied on to support this proposed removal. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. How do you handle these aggravating factors? The Douglas factors 8. The nature and seriousness of the offense, and its relationship to the employee's . rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Discipline can range from letters of reprimand to short suspensions. The Douglas Factors . Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Do they have a positive track record? 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? 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 . For instance, did the employee have access to the table of penalties? These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Heres what anyone who works for the federal government needs to know about the Douglas Factors. You should review the table to make sure that your discipline is in keeping with this table. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. Reston, VA 20190. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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 example, a law enforcement officer is charged with enforcing laws. 1999). Postal Service, 634 F.3d 1274, 1279 (Fed. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. What kind of recovery can I get in my discrimination case? Your absence was not approved by your supervisor. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . Factor: Consistency with table of penalties 2. The Table provides for more serious penalties for . 10 Ward v. U.S. 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. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Agency's table of penalties recognizes this severity in establishing ranges of penalties for In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. The Douglas factors are also referred to as mitigating factors. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Deciding officials should do a Douglas analysis in every case, except when Congress . This Douglas factor is not one of the more commonly cited Douglas factors. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . That translates into harsher penalties for repeat offenders. %PDF-1.5 % A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Contact your employee relations advisor to get the information to fill in the blanks. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. There are certain standards of behavior and conduct expected of employees by our external and internal customers. A knowledge of the Douglas Factors is helpful for both federal employees and managers. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. However, the principle of "like penalties for like offenses" does not require perfect consistency. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The factors may mitigate or aggravate (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.Relevant? Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.