The Douglas factors are also referred to as mitigating factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. This is because it puts you on notice of the penalties which is factor #9, below. 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. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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 . This factor is generally an afterthought for both management and employees. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Sample 2: You have the right to review the material relied on to support this proposed removal. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. The Douglas Factors: Disciplining employees is a fact of life. 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This Douglas factor is not one of the more commonly cited Douglas factors. Sample 1: I have attached the material relied on to support this proposed removal. 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. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Check with your labor relations advisor. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). The nature and seriousness of the offense, and its relationship to the employee's . 10 Ward v. U.S. 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. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Can an employee take responsibility, correct their behavior and come back to the job? In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Merit Systems Protection Board still follows today. The fourth Douglas Factor requires managers to take an employees past performance into account. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. 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. If you want you can download and read the fullDouglas v. V.A. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. WA 8.Douglas Factor Analysis. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. PDF Douglas Factors In Depth - Letter Carrier Connection Agency's table of penalties recognizes this severity in establishing ranges of penalties for PDF The Douglas Factors - United States Office of Personnel Management 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. . This table should be available to you as an employee. The first time an employee is In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. This factor lends itself most to employees arguing for leniency in their case. For instance, did the employee have access to the table of penalties? Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. 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. They likely held the same job you holdat some point in the past. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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). 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. Can someone help me present the Douglas Factors to management? The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. If you are looking for a representative, note that we are not taking on any cases at this time. PDF DOI Department Manual Table of Offenses and Penalties 2278 0 obj <>stream 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. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. What is the table of penalties? - idswater.com * Douglas v. Veterans Administration, 5 M.S.P.R. !%7K81E8zi. 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. Did management send out a memo clarifying rules? But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. What if I do not agree with managements analysisof a specific Douglas Factor? However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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? How do you handle these aggravating factors? Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. (Use sample 1). However, despite the importance of these criteria, many employees arent familiar with them. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. endobj PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Relevant? 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 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; When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 2015). <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com To some extent, this is a subjective question. Additionally, your coworkers have their own assignments. These factors are: The nature and seriousness of the offense and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. The site is secure. Cir. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 1 0 obj See Douglas v. Veterans Administration, 5 M.S.P.R. Cir. 0 MSPB decision. EAP can be reached by calling 1-800-XXX-XXXX. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. The Douglas Factors . Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. . Federal agencies may take disciplinary action against employees who engage in misconduct. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. Ultimately, managers are people too. 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. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . These are known as Douglas factors. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. What kind of recovery can I get in my discrimination case? Plaza America Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n A well presented reply to theproposed discipline can lead to substantial mitigation. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. endstream endobj startxref Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. The Federal Starr is a publication by Starr Wright USA. 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. Which is why Federal Employee Professional Liability Insurance is critical. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. The Douglas Factors - Melville Johnson 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 3 Douglas v. Veterans Administration, 5 M.S.P.R. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). For example, a law enforcement officer is charged with enforcing laws.