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. They likely held the same job you holdat some point in the past. 280 (1981) These factors are used to explain why the penalty was chosen. Similar offenses can be used to guide penalty selection. For instance, did the employee have access to the table of penalties? ______________________________ __________________ (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. a. 280 (1981). A well presented reply to theproposed discipline can lead to substantial mitigation. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). If not, include delivery confirmation by the postal or delivery service. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. PDF Douglas Factors In Depth - Letter Carrier Connection The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. What if I do not agree with managements analysisof a specific Douglas Factor? If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. WA Note. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. The Douglas Factors: What You Need to Know - Medium On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. Cir. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Can someone help me present the Douglas Factors to management? Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The key is credibility. 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. 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. Consistency of the penalty with any table of penalties an agency may have . stream Has an employee been on the job for a long time? 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 2015). 502, 508 (1994) (holding that because 31 U.S.C. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Did the employee have access to a handbook that detailed proper procedure and policy? 10 Ward v. U.S. 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. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Starr Wright USA is the nations leading provider of FEPLI. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. You should not list a factor unless it is relevant. 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. PDF Chapter 4. Hud Table of Offenses and Penalties @b o $&F Sq70 # Relevant? 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. PDF Douglas Factors - AFGE 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. hb```f``2c`a`,c`@ r, ^Ma %PDF-1.5 % Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Cir. Douglas Factors in Federal Employment - InformedFED disciplinary situations. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The employee's job level and type of employment . Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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 . Heres what anyone who works for the federal government needs to know about the 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. 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. 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). posted June 9, 2003. @ 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 . So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. !%7K81E8zi. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. For example, a law enforcement officer is charged with enforcing laws. 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. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Cir. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. This means you should provide objective facts to support your arguments if you can. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Douglas Factor Mitigation for Federal Employees 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). Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Govexec.com . Discipline can range from letters of reprimand to short suspensions. 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. 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. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter The Douglas Factors should be considered in selecting a penalty. generadores de diesel precios 4 0 obj This table should be available to you as an employee. 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. what extent, the "Douglas" factors come into play or how egregious the act was. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. past performance). Negligent or accidental incidents will be viewed more favorably than intentional acts. Only relevant factors must be included. Visit WrightUSA.com to start your policy! Agency's table of penalties recognizes this severity in establishing ranges of penalties for The fourth Douglas Factor requires managers to take an employees past performance into account. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. This factor lends itself most to employees arguing for leniency in their case. Suite 305 Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. But they may refuse to. The national media picked the story up, and it was very detrimental to the agency. The Federal Starr is a publication by Starr Wright USA. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Contact your employee relations advisor to get the information to fill in the blanks. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 72 0 obj <>stream Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. For more information, visit WrightUSA.com. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. This one is pretty self-explanatory. PDF Committee on Oversight and Government Reform U.S. House of 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. Factor 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. 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 employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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; the potential for the employees rehabilitation; 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; and. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Why can such behavior not be tolerated? 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 . 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. 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. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Ultimately, managers are people too. Factor 3: The employees past disciplinary record. We need to specifically state why there is erosion of supervisory confidence. 280 (1981) These factors are used to explain why the penalty was chosen. 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. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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 . 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). Just knowing the rules, however, cant fully protect you if a case should arise. 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? 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. The factors may mitigate or aggravate (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.Relevant? This Douglas factor is not one of the more commonly cited Douglas factors. 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. 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. Cir. Managers must take an employees propensity for rehabilitation into account. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. 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. Federal government websites often end in .gov or .mil. It is important to rebut these issues in a Douglas factor defense. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Federal agencies may take disciplinary action against employees who engage in misconduct. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Any replies submitted will be given full consideration. 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. PDF The Douglas Factors - Energy These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 51, 8 (2001). This Factor takes mitigating circumstances into account. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Your absence was not approved by your supervisor. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Additionally, this factor looks at intent. %PDF-1.5 In some instances, you may want to request that management reconsider your case. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. You need to look at the specifics of your case in light of the twelve factors. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Do they have a positive track record? However, despite the importance of these criteria, many employees arent familiar with them. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining an appropriate . 280, 305-06 (1981). A Table of Penalties is a list of . The Douglas Factors explained, the keys to a discipline case - Ivancie Law generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Cir. Conclusions and vague statements do not hold much weight with third parties. Douglas Factor Analysis. 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. 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. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Whether you use two charges in this case will depend upon the evidence available. %%EOF the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. The reason(s) for this action is (are) specified below. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). PDF DOI Department Manual Table of Offenses and Penalties 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 ?