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This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? Merit Systems Protection Board still follows today. 280, 302 (1981). Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 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). Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. Sample 1: I have attached the material relied on to support this proposed removal. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. Do they have a positive track record? 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. 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 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 . ______________________________ __________________ (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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. Suite 305 xfg! rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. 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). 2012) (internal citations and punctuation omitted). 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. If the person signed for receipt of the letter include that information. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? Ultimately, the more credible evidence you can provide to support your position the better. The Douglas Factors . 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. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Managers must apply penalties that are similar to those imposed in like cases. You will be notified in writing of the final decision. That translates into harsher penalties for repeat offenders. Cir. These are known as Douglas factors. Contact your employee relations advisor to get the information to fill in the blanks. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Do you need a table of penalties in OPM? Federal agencies may take disciplinary action against employees who engage in misconduct. 8.Douglas Factor Analysis. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). The fourth Douglas Factor requires managers to take an employees past performance into account. But do not highlight them either. This Quick Start Guide covers the following Key Points: 1. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Conclusions and vague statements do not hold much weight with third parties. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE COPYRIGHT 2023. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. 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. This article covers the Douglas Factors. Whether you use two charges in this case will depend upon the evidence available. Plaza America This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. The site is secure. Note. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Cir. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. PDF Douglas Factors In Depth - Branch 38 NALC PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 The first time an employee is Cir. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. How do you handle these aggravating factors? ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r This one is pretty self-explanatory. h[M+}LX,? Check with your labor relations advisor. Berry & Berry PLLC. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). <> 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. It is more often used to attempt to aggravate a disciplinary penalty. %PDF-1.5 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Starr Wright USA is the nations leading provider of FEPLI. Similar offenses can be used to guide penalty selection. 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Factor: Consistency with table of penalties 2. Douglas Factors - Postal Reporter Can an employee take responsibility, correct their behavior and come back to the job? In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Deciding officials should do a Douglas analysis in every case, except when Congress . However, despite the importance of these criteria, many employees arent familiar with them. 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. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. In theory, discipline should be both corrective and progressive. Cir. PDF Chapter 4. Hud Table of Offenses and Penalties 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. Table Of Penalties Douglas Factors Press Briefing by Press Secretary Karine Jean-Pierre The notoriety of the offense or its impact upon the reputation of the agency; . That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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. 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 Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. The Douglas Factors - United States Office of Personnel Management %PDF-1.5 % The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . Managers and supervisors should properly document the employee misconduct. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. PDF Committee on Oversight and Government Reform U.S. House of Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. Only those Douglas Factors relevant to each case need be considered. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Has an employee been on the job for a long time? 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. 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Reston, VA 20190. 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. The final Douglas Factor asks both manager and employee to consider alternative penalties. Managers must take an employees propensity for rehabilitation into account. 9 Ward v. U.S. On (DATE), you were scheduled to report to work at (TIME). Also any awards or accolades the employee has would be mitigating in nature. 280, 305-06 (1981). Management has likely even required you to review the table and sign a form asserting your knowledge of it. past performance). 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? 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. This Douglas factor is not one of the more commonly cited Douglas factors. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 0 51, 8 (2001). Factor: Nature and seriousness 9. 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. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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. 4 0 obj 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. hbbd``b`:$ Hd V$D? Discipline can range from letters of reprimand to short suspensions. PDF The Douglas Factors Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? A well presented reply to theproposed discipline can lead to substantial mitigation. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Offenses related to intoxicants. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. But they may refuse to. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. endstream endobj startxref Sample: Specification #1. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). 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. Private sector cases are drastically different. 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? 1999). 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). A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 10 Ward v. U.S. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Negligent or accidental incidents will be viewed more favorably than intentional acts. Specific evidence/testimony as to why an employee can no longer be trusted is critical. You should not list a factor unless it is relevant. 2015). In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. Only relevant factors must be included. Yes___ No____This factor is one of the more technically difficult to apply. endobj Consistency of the penalty with any table of penalties an agency may have . 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? An overlooked factabout the cost of hiring an attorney is that they can actually save you money. stream EachDouglas Factor can work for or against an employee depending on their specific case. hb```f``2c`a`,c`@ r, ^Ma It is important that you really highlightthefactors that are in your favor. The national media picked the story up, and it was very detrimental to the agency. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 1985). They know the stress of a career, they know how life can be difficult. It is important to rebut these issues in a Douglas factor defense. You should review the table to make sure that your discipline is in keeping with this table. For example, an allegation of dishonesty would be treated . Factor 3: The employees past disciplinary record. The more notorious the offense you commit the more severe the discipline you will face. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Specification #2. 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 . removal). 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. . PDF Committee on Oversight and Government Reform U.S. House of the case of Douglas vs. Veterans Administration, 5 M.S.P.R. There are certain standards of behavior and conduct expected of employees by our external and internal customers. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. The Douglas Factors should be considered in selecting a penalty. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. A mitigating factor is one that suggests the discipline be mitigated, or lowered. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. 3 0 obj 280, 290 (1981). These factors are the following: 1. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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.

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