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1999). The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. 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. Cir. If you list a factor you must explain why it is relevant. We need to specifically state why there is erosion of supervisory confidence. 280, 290 (1981). It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. You neither came to work nor did you call in your absence. 2 0 obj A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. The more notorious the offense you commit the more severe the discipline you will face. To some extent, this is a subjective question. 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 It is important to rebut these issues in a Douglas factor defense. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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 mitigating factor is one that suggests the discipline be mitigated, or lowered. endstream endobj startxref Internal Control Evaluation, page 21 . PDF Table 1-1: Table of Penalties for Various Offenses - United States Army COPYRIGHT 2023. 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. Cir. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Misconduct is also considered more severe if it is done maliciously or for personal gain. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 1999). 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. Explanation, if relevant: (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. 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. Relevant? In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . The national media picked the story up, and it was very detrimental to the agency. 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. The Douglas Factors . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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? Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. MSPB decision. You should review the table to make sure that your discipline is in keeping with this table. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 1 0 obj A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. What is effect of the misconduct charged? 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Relevant? Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). The right to answer orally does not include the right to a formal hearing with examination of witnesses. But do not highlight them either. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. The reason(s) for this action is (are) specified below. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. Postal Service, 634 F.3d 1274, 1282 (Fed. You neither came to work nor did you call in your absence. The notoriety of the offense or its impact upon the reputation of the agency; . Managers and supervisors should properly document the employee misconduct. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 2012) (internal citations and punctuation omitted). However, the principle of "like penalties for like offenses" does not require perfect consistency. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. posted June 9, 2003. Douglas Factor Analysis. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Which is why Federal Employee Professional Liability Insurance is critical. Additionally, this factor looks at intent. Relevant? For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. What kind of recovery can I get in my discrimination case? This Quick Start Guide covers the following Key Points: 1. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 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? Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. On the surface, many incidents of misconduct may seem to be similar. 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. Press Briefing by Press Secretary Karine Jean-Pierre The Douglas Factors - United States Office of Personnel Management a. Has an employee been on the job for a long time? The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. These are known as Douglas factors. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. The Douglas Factors . Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Starr Wright USA is the nations leading provider of FEPLI. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. You need to look at the specifics of your case in light of the twelve factors. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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.