Management has likely even required you to review the table and sign a form asserting your knowledge of it. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Cir. The Douglas Factors . EAP can be reached by calling 1-800-XXX-XXXX. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. . Factor: Nature and seriousness 9. This factor is generally an afterthought for both management and employees. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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. The notoriety of the offense or its impact upon the reputation of the agency; . These are known as Douglas factors. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. It is important that you really highlightthefactors that are in your favor. 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. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Relevant? Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 1999). Douglas Factor Analysis. This Factor takes mitigating circumstances into account. If you want you can download and read the fullDouglas v. V.A. Federal agencies may take disciplinary action against employees who engage in misconduct. What kind of recovery can I get in my discrimination case? In theory, discipline should be both corrective and progressive. The Douglas Factors . Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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 . You neither came to work nor did you call in your absence. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. 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? Agency's table of penalties recognizes this severity in establishing ranges of penalties for By William N. Rudman . Visit WrightUSA.com to start your policy! Remain calm, deferential and respectful at all times. 280, 305-06 (1981). 280 (1981) These factors are used to explain why the penalty was chosen. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. The Douglas factors 8. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. Note. 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 3 Douglas v. Veterans Administration, 5 M.S.P.R. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 72 0 obj <>stream Relevant? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. Obtain insurance protection for your career today. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. You will be notified in writing of the final decision. Be clear, terse, and apologetic. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Sometimes management may misapply factors, or misconstrue them. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. %PDF-1.6 % removal). The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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? Ultimately, the more credible evidence you can provide to support your position the better. Your absence was not approved by your supervisor. A deciding official must consider specific factors in determining the reasonableness of the penalty. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Managers must take an employees propensity for rehabilitation into account. Also any awards or accolades the employee has would be mitigating in nature. Relevant? * Douglas v. Veterans Administration, 5 M.S.P.R. When looking for an attorney make sure they have experience handling federal-sector employment cases. This one is pretty self-explanatory. See Douglas v. Veterans Administration, 5 M.S.P.R. These 12 factors play a key role in the outcome of federal employee discipline cases. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 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. These terms are used commonly in Douglas Factors application. Lets say you missed a deadline for an important assignment and management has proposed removal. On (DATE), you were scheduled to report to work at (TIME). 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). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. See Douglas v. Veterans Administration, 5 M.S.P.R. Employees who can appeal an adverse action to the Board have constitutional due process rights. In many cases, managers act as deciding officials in discipline cases. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Additionally, your coworkers have their own assignments. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 2278 0 obj <>stream Yes___ No____This factor is one of the more technically difficult to apply. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Do not deny the existence of bad facts. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. You neither came to work nor did you call in your absence. 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. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. It is important to rebut these issues in a Douglas factor defense. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. 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. 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. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. If this is impractical to do, use Sample 2. Before sharing sensitive information, make sure youre on a federal government site. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . This Quick Start Guide covers the following Key Points: 1. 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 potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 280 (1981). 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. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. Negligent or accidental incidents will be viewed more favorably than intentional acts. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If you list a factor you must explain why it is relevant. 8.Douglas Factor Analysis. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 502, 508 (1994) (holding that because 31 U.S.C. The consistency of the penalty with any applicable agency table of penalties; 8. If not, include delivery confirmation by the postal or delivery service. @b o $&F Sq70 # When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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. 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. MSPB decision. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. !%7K81E8zi. 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. (Use sample 1). A mitigating factor is one that suggests the discipline be mitigated, or lowered. 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 . Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? In some instances this may mean pointing out points of analysis or facts to management if they are unaware. However, despite the importance of these criteria, many employees arent familiar with them. 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. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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 . Govexec.com . In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Factor: Consistency with table of penalties 2. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Postal Service, 634 F.3d 1274, 1279 (Fed. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may 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. 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. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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. Only relevant factors must be included. 1985). Your absence was not approved by your supervisor. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Only those Douglas Factors relevant to each case need be considered. 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 reason(s) for this action is (are) specified below. Cir. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. Suite 305 If you are low level employee with no supervisory functions this factor should have some mitigating value. Relevant? A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses.
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