Sometimes management may misapply factors, or misconstrue them. These are known as Douglas factors. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. 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. stream Similar offenses can be used to guide penalty selection. 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. 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. 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 An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. What kind of recovery can I get in my discrimination case? 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. 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. 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. 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). 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. You should not list a factor unless it is relevant. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The right to answer orally does not include the right to a formal hearing with examination of witnesses. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 280, 302 (1981). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. affidavits, performance ratings, SF-50s, letters of commendation) for the 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. In many cases, managers act as deciding officials in discipline cases. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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. Cir. 51, 8 (2001). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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. Has an employee been on the job for a long time? 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. 1985). EachDouglas Factor can work for or against an employee depending on their specific case. 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 280 (1981) These factors are used to explain why the penalty was chosen. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . You need to look at the specifics of your case in light of the twelve factors. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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? 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. In theory, discipline should be both corrective and progressive. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. a. The more notorious the offense you commit the more severe the discipline you will face. 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 Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Be clear, terse, and apologetic. 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. 1999). On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. Lets say you missed a deadline for an important assignment and management has proposed removal. 0 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? The Douglas Factors should be considered in selecting a penalty. 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. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. 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. %%EOF Note. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Govexec.com . Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. . 8.Douglas Factor Analysis. Suite 305 The employee's job level and type of employment . Ultimately, the more credible evidence you can provide to support your position the better. Cir. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. 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 . Consistency of the penalty with any applicable agency table of penalties; 8. 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. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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 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 . Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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 . % Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 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). The Douglas factors are: (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; 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. This is because it puts you on notice of the penalties which is factor #9, below. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). Negligent or accidental incidents will be viewed more favorably than intentional acts. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Your absence was not approved by your supervisor. Merit Systems Protection Board still follows today. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Factor: Consistency with table of penalties 2. Cir. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 72 0 obj <>stream Did management send out a memo clarifying rules? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. See Douglas v. Veterans Administration, 5 M.S.P.R. COPYRIGHT 2023. Only those Douglas Factors relevant to each case need be considered. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. You will be notified in writing of the final decision. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ On (DATE), you were scheduled to report to work at (TIME). The idea is that discipline is meantto be corrective and progressive. 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. ALL RIGHTS RESERVED. 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. In addition, actions . @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . 3 Douglas v. Veterans Administration, 5 M.S.P.R. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. But do not highlight them either. past performance). However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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 . Deciding officials should do a Douglas analysis in every case, except when Congress . 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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 Whether you use two charges in this case will depend upon the evidence available. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. This factor looks to the status of the employee. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. Private sector cases are drastically different. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. What every federal employee facing discipline should be familiar with: The Douglas Factors. The site is secure. Such cases call into question an employees ability to perform their specific job duties with integrity. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. What if I do not agree with managements analysisof a specific Douglas Factor? A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. The Federal Starr is a publication by Starr Wright USA. Only relevant factors must be included. 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 .
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