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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 1985). Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Which is why Federal Employee Professional Liability Insurance is critical. What every federal employee facing discipline should be familiar with: The Douglas Factors. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. It is important that you really highlightthefactors that are in your favor. 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. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. The Douglas Factors explained, the keys to a discipline case - Ivancie Law The employee's job level and type of employment . You should not list a factor unless it is relevant. Starr Wright USA is the nations leading provider of FEPLI. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. The Douglas factors 8. COPYRIGHT 2023. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. <> The Douglas Factors: Disciplining employees is a fact of life. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Did the employee have access to a handbook that detailed proper procedure and policy? All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. We are currently not taking any new cases at this time. What is the table of penalties? - idswater.com The Douglas Factors - Melville Johnson This means you should provide objective facts to support your arguments if you can. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. PDF The Douglas Factors - Energy This Douglas factor is important and we use this argument in our representation of federal employees. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 51, 8 (2001). Federal government websites often end in .gov or .mil. This article covers the Douglas Factors. Ultimately, the more credible evidence you can provide to support your position the better. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. 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. Cir. Govexec.com . EachDouglas Factor can work for or against an employee depending on their specific case. 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 . Explanation, if relevant: (9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. Any replies submitted will be given full consideration. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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. 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. A deciding official must consider specific factors in determining the reasonableness of the penalty. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. hb```f``2c`a`,c`@ r, ^Ma 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. 3 0 obj 280 (1981) These factors are used to explain why the penalty was chosen. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. The key is credibility. The national media picked the story up, and it was very detrimental to the agency. That translates into harsher penalties for repeat offenders. The consistency of the penalty with any applicable agency table of penalties; 8. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. generadores de diesel precios In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. This factor lends itself most to employees arguing for leniency in their case. Similar offenses can be used to guide penalty selection. 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. PDF Douglas Factors - AFGE Plaza America Cir. On (DATE), you were scheduled to report to work at (TIME). endobj This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Conclusions and vague statements do not hold much weight with third parties. % Specification #2. These terms are used commonly in Douglas Factors application. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. 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? 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. Managers must take an employees propensity for rehabilitation into account. 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. 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. On (DATE), you were scheduled to report to work at (TIME). PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties endstream endobj startxref Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. In many cases, managers act as deciding officials in discipline cases. Relevant? 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. Cir. 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. When looking for an attorney make sure they have experience handling federal-sector employment cases. What is effect of the misconduct charged? In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. Contact your employee relations advisor to get the information to fill in the blanks. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. You neither came to work nor did you call in your absence. 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. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 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). The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. If you are low level employee with no supervisory functions this factor should have some mitigating value. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. Do not deny the existence of bad facts. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Berry & Berry PLLC. Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. The first time an employee is 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. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. Obtain insurance protection for your career today. Management has likely even required you to review the table and sign a form asserting your knowledge of it. PDF The Douglas Factors You neither came to work nor did you call in your absence. If you want you can download and read the fullDouglas v. V.A. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 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 . affidavits, performance ratings, SF-50s, letters of commendation) for the record. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. 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). Managers must apply penalties that are similar to those imposed in like cases. 49 0 obj <> endobj 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. 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. How does action taken promote the efficiency of the service? A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Whether you use two charges in this case will depend upon the evidence available. Factor 1: The nature and seriousness of the offense, and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Additionally, your coworkers have their own assignments. PDF The Douglas Factors - United States Office of Personnel Management 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. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. These 12 factors play a key role in the outcome of federal employee discipline cases. Relevant? 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. Merit Systems Protection Board still follows today. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . The Douglas Factors - United States Office of Personnel Management 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. 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. 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. Misconduct and Discipline | U.S. Department of the Interior Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. You need to look at the specifics of your case in light of the twelve factors. In theory, discipline should be both corrective and progressive. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 280, 305-06 (1981). (Use sample 1). Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. They likely held the same job you holdat some point in the past. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed.
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