By William N. Rudman . Additionally statements from managers or co-workers as to your ability and integrity will be helpful. past performance). 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. 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. 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). B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Has an employee been on the job for a long time? COPYRIGHT 2023. 4 0 obj 49 0 obj <> endobj Managers must take an employees propensity for rehabilitation into account. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . We are currently not taking any new cases at this time. PDF The Douglas Factors - United States Office of Personnel Management The Douglas factors are also referred to as mitigating factors. endstream endobj startxref MSPB decision. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Douglas Factors for Federal Employees - berrylegal Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. 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. 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 Relevant? Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. The Douglas Factors - Melville Johnson The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Misconduct and Discipline | U.S. Department of the Interior <> The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer 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. Cir. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Which is why Federal Employee Professional Liability Insurance is critical. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties All other penalty determinations should undergo thorough reasoning under the Douglas Factors. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Relevant? Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 10 Ward v. U.S. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. PDF The Douglas Factors - National Federation of Federal Employees These factors are the following: 1. This factor looks to the status of the employee. 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. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. 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? Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. How does action taken promote the efficiency of the service? yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Why can such behavior not be tolerated? 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. PDF The Douglas Factors Ultimately, managers are people too. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. Relevant? Misconduct is also considered more severe if it is done maliciously or for personal gain. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Also any awards or accolades the employee has would be mitigating in nature. Factor 10: Potential for the employees rehabilitation. The Douglas factors are: (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; Douglas Factor Mitigation for Federal Employees 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. 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? Discipline can range from letters of reprimand to short suspensions. @ 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 . 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. Plaza America The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. In some instances, you may want to request that management reconsider your case. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. 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. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. 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. 280 (1981) These factors are used to explain why the penalty was chosen. % 280, 290 (1981). Postal Service, 634 F.3d 1274, 1279 (Fed. This factor lends itself most to employees arguing for leniency in their case. Agency's table of penalties recognizes this severity in establishing ranges of penalties for See Douglas v. Veterans Administration, 5 M.S.P.R. 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. The Federal Starr is a publication by Starr Wright USA. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Additionally, this factor looks at intent. How the factors will be applied in your disciplinary case depends on the specifics of your case. This Douglas factor is not one of the more commonly cited Douglas factors. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. PDF Douglas Factors In Depth - Letter Carrier Connection Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. PDF Committee on Oversight and Government Reform U.S. House of It is important to rebut these issues in a Douglas factor defense. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Conclusions and vague statements do not hold much weight with third parties. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. PDF Chapter 4. Hud Table of Offenses and Penalties 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. The site is secure. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. If this is impractical to do, use Sample 2. 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. The key is credibility. Starr Wright USA is the nations leading provider of FEPLI. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Did management send out a memo clarifying rules? Regardless, try to avoid getting into an argument with management over factors. 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. Berry & Berry PLLC. 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. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Negligent or accidental incidents will be viewed more favorably than intentional acts. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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). A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. The .gov means its official. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. That translates into harsher penalties for repeat offenders. Your absence was not approved by your supervisor. Before sharing sensitive information, make sure youre on a federal government site. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios PDF Table 1-1: Table of Penalties for Various Offenses - United States Army If you are looking for a representative, note that we are not taking on any cases at this time. 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. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. ?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. 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 these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. While each case is different, seeking alternatives may be useful. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Obtain insurance protection for your career today. 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. If the person signed for receipt of the letter include that information. This factor is generally an afterthought for both management and employees. 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. The Douglas Factors: Disciplining employees is a fact of life. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Cir. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Sample: Specification #1. Visit WrightUSA.com to start your policy! the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. The more notorious the offense you commit the more severe the discipline you will face. Additionally, your coworkers have their own assignments. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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? consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Private sector cases are drastically different. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? %PDF-1.5