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. 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. Your job as an employee is to support your position as best as you possibly can. 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. The Douglas factors are also referred to as mitigating factors. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). EachDouglas Factor can work for or against an employee depending on their specific 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. Factor: Consistency with table of penalties 2. 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. 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. 51, 8 (2001). Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. Consistency of the penalty with any applicable agency table of penalties; 8. 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. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Factor: Employee's . 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 . If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 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? 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. However, if you properly argue this factor it can go a long way towards helping your case. With responsibility comes greater obligation and scrutiny. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Offenses related to intoxicants. 280 (1981). 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. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 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; . You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. 3 Douglas v. Veterans Administration, 5 M.S.P.R. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Cir. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. stream So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. posted June 9, 2003. A well presented reply to theproposed discipline can lead to substantial mitigation. WA Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. %PDF-1.6 % Only relevant factors must be included. Your absence was not approved by your supervisor. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Factor 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. . 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). Douglas Factor Analysis. Discipline can range from letters of reprimand to short suspensions. 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. 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. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Don't force misconduct into a listed offense unless it accurately fits. Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). The consistency of the penalty with any applicable agency table of penalties; 8. hb```f``2c`a`,c`@ r, ^Ma Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Other times it may mean providing some evidence to management to further support your position. 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. 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. Postal Service, 634 F.3d 1274, 1282 (Fed. Visit WrightUSA.com to start your policy! 0 Note. The final Douglas Factor asks both manager and employee to consider alternative penalties. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? 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. Be clear, terse, and apologetic. We need to specifically state why there is erosion of supervisory confidence. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Govexec.com . ______________________________ __________________ (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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). <>/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>> If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. For instance, did the employee have access to the table of penalties? The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. How do you handle these aggravating 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. A Table of Penalties is a list of . The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Misconduct is also considered more severe if it is done maliciously or for personal gain. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Any replies submitted will be given full consideration. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. These terms are used commonly in Douglas Factors application. 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. Berry & Berry PLLC. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job?

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