This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. ALL RIGHTS RESERVED. 2278 0 obj <>stream Do you need a table of penalties in OPM? ^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. what extent, the "Douglas" factors come into play or how egregious the act was. Such cases call into question an employees ability to perform their specific job duties with integrity. This one is pretty self-explanatory. Conclusions and vague statements do not hold much weight with third parties. h[M+}LX,? Cir. (Use sample 1). Private sector cases are drastically different. 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. 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. Other times it may mean providing some evidence to management to further support your position. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. endobj 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. How does action taken promote the efficiency of the service? Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. For example, an allegation of dishonesty would be treated . Cir. Federal government websites often end in .gov or .mil. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Similar offenses can be used to guide penalty selection. Managers must apply penalties that are similar to those imposed in like cases. 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. For instance, did the employee have access to the table of penalties? 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, 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. This Douglas factor is important and we use this argument in our representation of federal employees. { 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. 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? What is effect of the misconduct charged? 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Regardless, try to avoid getting into an argument with management over factors. * Douglas v. Veterans Administration, 5 M.S.P.R. 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. 2015). Which is why Federal Employee Professional Liability Insurance is critical. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Factor 7: Consistency of the penalty with any applicable agency table of penalties. %PDF-1.5 % For example, a law enforcement officer is charged with enforcing laws. You should not list a factor unless it is relevant. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. If you are looking for a representative, note that we are not taking on any cases at this time. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Also any awards or accolades the employee has would be mitigating in nature. We are currently not taking any new cases at this time. Plaza America For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. 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. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. 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. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream All other penalty determinations should undergo thorough reasoning under the Douglas Factors. See U.S. 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 On (DATE), you were scheduled to report to work at (TIME). Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Factor 3: The employees past disciplinary record. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Relevant? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 1985). 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. You need to look at the specifics of your case in light of the twelve factors. 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). 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. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. If you have been disciplined before you will face harsher discipline going forward. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. Note. Obtain insurance protection for your career today. Postal Service, 634 F.3d 1274, 1279 (Fed. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. . Deciding officials should do a Douglas analysis in every case, except when Congress . 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. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. Reston, VA 20190. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Govexec.com . Additionally, this factor looks at intent. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. A Table of Penalties is a list of . Cir. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 3 0 obj 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. 8.Douglas Factor Analysis. 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Relevant? 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 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 . This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. What kind of recovery can I get in my discrimination case? To some extent, this is a subjective question. Managers must take an employees propensity for rehabilitation into account. In addition, actions . Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Factor: Notoriety and impact 3. You should review the table to make sure that your discipline is in keeping with this table. 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. The Douglas Factors . The nature and seriousness of the offense, and its relationship to the employee's . As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. endobj the case of Douglas vs. Veterans Administration, 5 M.S.P.R. However, despite the importance of these criteria, many employees arent familiar with them. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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 . Agency's table of penalties recognizes this severity in establishing ranges of penalties for When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Only those Douglas Factors relevant to each case need be considered. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Merit Systems Protection Board still follows today. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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 Your job as an employee is to support your position as best as you possibly can. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Ultimately, the more credible evidence you can provide to support your position the better. This Factor takes mitigating circumstances into account. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Contact your employee relations advisor to get the information to fill in the blanks. 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. A supervisor cannot just say it; he/she has to prove it. Sometimes management may misapply factors, or misconstrue them. ______________________________ __________________ (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. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. 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. By William N. Rudman . Lets say you missed a deadline for an important assignment and management has proposed removal. 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. 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. 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. The Douglas Factors . It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 51, 8 (2001). This is because it puts you on notice of the penalties which is factor #9, below. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Sample: Specification #1. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. @b o $&F Sq70 # Sample 2: You have the right to review the material relied on to support this proposed removal. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz As a general rule, the more negative publicity caused by an offense, the harsher the discipline. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). The Federal Starr is a publication by Starr Wright USA. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. <>>> Yes___ No____This factor is one of the more technically difficult to apply. Check with your labor relations advisor. 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. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Cir. 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. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. 280 (1981) These factors are used to explain why the penalty was chosen. 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. 9 Ward v. U.S. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 1 0 obj 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? Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Before sharing sensitive information, make sure youre on a federal government site. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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. The Table provides for more serious penalties for . 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. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply.
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