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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. The final Douglas Factor asks both manager and employee to consider alternative penalties. Management has likely even required you to review the table and sign a form asserting your knowledge of it. hb```f``2c`a`,c`@ r, ^Ma 1999). 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 . -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. To some extent, this is a subjective question. EAP can be reached by calling 1-800-XXX-XXXX. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. How does action taken promote the efficiency of the service? The consistency of the penalty with any applicable agency table of penalties; 8. The .gov means its official. 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. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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). On (DATE), you were scheduled to report to work at (TIME). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. %PDF-1.5 Cir. 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 kind of recovery can I get in my discrimination case? In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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. 2015). Cir. Plaza America If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. past performance). This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P A well presented reply to theproposed discipline can lead to substantial mitigation. 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. 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 . Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. %PDF-1.6 % A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Lets say you missed a deadline for an important assignment and management has proposed removal. The result will turn on the specifics of your case and the procedural posture as well. Federal agencies may take disciplinary action against employees who engage in misconduct. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. Before sharing sensitive information, make sure youre on a federal government site. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? On the surface, many incidents of misconduct may seem to be similar. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. 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. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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 reputation . See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 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. Do you need a table of penalties in OPM? A Table of Penalties is a list of . 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 these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. In theory, discipline should be both corrective and progressive. 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. endobj 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Discipline can range from letters of reprimand to short suspensions. Factor: Consistency with table of penalties 2. On (DATE), you were scheduled to report to work at (TIME). Visit WrightUSA.com to start your policy! If this is impractical to do, use Sample 2. 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. 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. Specification #2. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Similar offenses can be used to guide penalty selection. Cir. 3 Douglas v. Veterans Administration, 5 M.S.P.R. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. In many cases, managers act as deciding officials in discipline cases. 11700 Plaza America Drive The Douglas Factors . This means you should provide objective facts to support your arguments if you can. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Negligent or accidental incidents will be viewed more favorably than intentional acts. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Sometimes management may misapply factors, or misconstrue them. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. Don't force misconduct into a listed offense unless it accurately fits. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n The national media picked the story up, and it was very detrimental to the agency. ALL RIGHTS RESERVED. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. Factor 10: Potential for the employees rehabilitation. %%EOF what extent, the "Douglas" factors come into play or how egregious the act was. . 72 0 obj <>stream This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. 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. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. If you want you can download and read the fullDouglas v. V.A. past performance). It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Let me give you an example. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. ______________________________ __________________ (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. 2278 0 obj <>stream You should review the table to make sure that your discipline is in keeping with this table. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Additionally, this factor looks at intent. How do you handle these aggravating factors? 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. The Douglas Factors should be considered in selecting a penalty. 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. Factor 1: The nature and seriousness of the offense, and its relation to the employees 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. Explanation, if relevant: (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.Relevant? Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. xfg! This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). @b o $&F Sq70 # generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios They know the stress of a career, they know how life can be difficult. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Internal Control Evaluation, page 21 . 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. For example, a law enforcement officer is charged with enforcing laws. 51, 8 (2001). In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. disciplinary situations. Suite 305 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. 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. . A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Sample 1: I have attached the material relied on to support this proposed removal. For more information, visit WrightUSA.com. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor It is important that you really highlightthefactors that are in your favor. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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. Relevant? Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. COPYRIGHT 2023. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. There are certain standards of behavior and conduct expected of employees by our external and internal customers. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. 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? 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. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 1985). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Contact your employee relations advisor to get the information to fill in the blanks. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. We need to specifically state why there is erosion of supervisory confidence. The Douglas Factors . 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. What kind of recovery can I get in my discrimination case? 0 The Federal Starr is a publication by Starr Wright USA. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. The idea is that discipline is meantto be corrective and progressive. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Private sector cases are drastically different. Sample: Specification #1. 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. 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. 4 0 obj 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. If you have been disciplined before you will face harsher discipline going forward. 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. Conclusions and vague statements do not hold much weight with third parties. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. 1999). 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. The Table provides for more serious penalties for . The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . WA Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. This table should be available to you as an employee. The notoriety of the offense or its impact upon the reputation of the agency; . 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. 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. 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. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 280 (1981) These factors are used to explain why the penalty was chosen. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. By William N. Rudman . <> That translates into harsher penalties for repeat offenders. The nature and seriousness of the offense, and its relationship to the employee's .