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. What if I do not agree with managements analysisof a specific Douglas Factor? For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. 11700 Plaza America Drive 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. 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. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Relevant? Do you need a table of penalties in OPM? * Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. <>/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>> The Douglas factors 8. These factors are the following: 1. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& If you are looking for a representative, note that we are not taking on any cases at this time. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Do they have a positive track record? removal). To some extent, this is a subjective question. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. hb```f``2c`a`,c`@ r, ^Ma the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. That translates into harsher penalties for repeat offenders. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Yes___ No____This factor is one of the more technically difficult to apply. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. If not, include delivery confirmation by the postal or delivery service. What kind of recovery can I get in my discrimination case? 8.Douglas Factor Analysis. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. The national media picked the story up, and it was very detrimental to the agency. Deciding officials should do a Douglas analysis in every case, except when Congress . Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. Federal government websites often end in .gov or .mil. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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 . Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The employee's job level and type of employment . In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 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 . Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Regardless, try to avoid getting into an argument with management over factors. Douglas Factor Analysis. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Internal Control Evaluation, page 21 . Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 1 0 obj Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 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. Merit Systems Protection Board still follows today. 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. Let me give you an example. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. !%7K81E8zi. endstream endobj startxref 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). The more notorious the offense you commit the more severe the discipline you will face. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. 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. (Use sample 1). Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. Other times it may mean providing some evidence to management to further support your position. If the person signed for receipt of the letter include that information. endobj The Table provides for more serious penalties for . Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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.