Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. How the factors will be applied in your disciplinary case depends on the specifics of your case. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. This Factor takes mitigating circumstances into account. This Douglas factor is important and we use this argument in our representation of federal employees. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Specification #2. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. 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). In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Only relevant factors must be included. 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). Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. 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. If you are low level employee with no supervisory functions this factor should have some mitigating value. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 10 Ward v. U.S. 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. In some instances, you may want to request that management reconsider your case. what extent, the "Douglas" factors come into play or how egregious the act was. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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 . Cir. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Also any awards or accolades the employee has would be mitigating in nature. Plaza America The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. endobj Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. <> Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. If you have been disciplined before you will face harsher discipline going forward. 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. 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. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. If you want you can download and read the fullDouglas v. V.A. The key is credibility. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 280, 302 (1981). 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. 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 . Managers must take an employees propensity for rehabilitation into account. Additionally, this factor looks at intent. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 280, 305-06 (1981). Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 72 0 obj <>stream <>/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 youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. You should review the table to make sure that your discipline is in keeping with this table. Did the employee have access to a handbook that detailed proper procedure and policy? 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; . yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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 If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Cir. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. 49 0 obj <> endobj The Douglas Factors: Disciplining employees is a fact of life. ______________________________ __________________ (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. Why can such behavior not be tolerated? Relevant? In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. If the person signed for receipt of the letter include that information. 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).
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