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. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. 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). \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Just knowing the rules, however, cant fully protect you if a case should arise. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. Any replies submitted will be given full consideration. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Note. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. While each case is different, seeking alternatives may be useful. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Suite 305 @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Relevant? 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). Check with your labor relations advisor. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. %%EOF Any personal issues going on around the time of the misconduct should be brought to the attention of management. !%7K81E8zi. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Sample 1: I have attached the material relied on to support this proposed removal. 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? Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Be clear, terse, and apologetic. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. 1999). A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. On (DATE), you were scheduled to report to work at (TIME). 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. 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. 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. Factor: Employee's . Consistency of the penalty with any applicable agency table of penalties; 8. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. These terms are used commonly in Douglas Factors application. Factor 3: The employees past disciplinary record. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. . Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. (Use sample 1). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. You will be notified in writing of the final decision. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. 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. If you want you can download and read the fullDouglas v. V.A. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 2015). 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 fourth Douglas Factor requires managers to take an employees past performance into account. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. MSPB decision. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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:#/ Contact your employee relations advisor to get the information to fill in the blanks. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. It is important to rebut these issues in a Douglas factor defense. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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? All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. Also any awards or accolades the employee has would be mitigating in nature. The Douglas Factors include: 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.
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