Why can such behavior not be tolerated? 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. -What kind of recovery can I get in my discrimination case? Sample 1: I have attached the material relied on to support this proposed removal. affidavits, performance ratings, SF-50s, letters of commendation) for the record. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? Cir. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# MSPB decision. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. 9 Ward v. U.S. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. Factor: Consistency with table of penalties 2. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Berry & Berry PLLC. Govexec.com . The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . A mitigating factor is one that suggests the discipline be mitigated, or lowered. 3 0 obj Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! We are currently not taking any new cases at this time. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. % Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. @ 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 . If you are low level employee with no supervisory functions this factor should have some mitigating value. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Relevant? Specification #2. Douglas Factor Analysis. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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? past performance). 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Cir. 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. 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. If you are looking for a representative, note that we are not taking on any cases at this time. 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. Additionally, this factor looks at intent. The final Douglas Factor asks both manager and employee to consider alternative penalties. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. What every federal employee facing discipline should be familiar with: The Douglas Factors. 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 argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. The .gov means its official. Relevant? 280, 290 (1981). Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. 10 Ward v. U.S. 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. These terms are used commonly in Douglas Factors application. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Your absence was not approved by your supervisor. 280, 302 (1981). %PDF-1.5 How does action taken promote the efficiency of the service? 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. If this is impractical to do, use Sample 2. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Discipline can range from letters of reprimand to short suspensions. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. COPYRIGHT 2023. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 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 . 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 1999). 502, 508 (1994) (holding that because 31 U.S.C. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. If not, include delivery confirmation by the postal or delivery service. 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 lends itself most to employees arguing for leniency in their case. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. 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. Ultimately, the more credible evidence you can provide to support your position the better. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. The idea is that discipline is meantto be corrective and progressive. This has often been considered one of the most important Douglas factors by the MSPB. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? If you list a factor you must explain why it is relevant. But they may refuse to. Cir. Just knowing the rules, however, cant fully protect you if a case should arise. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Federal agencies may take disciplinary action against employees who engage in misconduct. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 72 0 obj <>stream Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. Regardless, try to avoid getting into an argument with management over factors. <> Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. The fourth Douglas Factor requires managers to take an employees past performance into account. h[M+}LX,? 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. By William N. Rudman . 51, 8 (2001). A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Only relevant factors must be included. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. endobj When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Relevant? @b o $&F Sq70 # Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. The Douglas factors 8. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 2015). This one is pretty self-explanatory. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. With responsibility comes greater obligation and scrutiny. Whether you use two charges in this case will depend upon the evidence available. Relevant? 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. You should not list a factor unless it is relevant. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. For more information, visit WrightUSA.com. Ultimately, managers are people too. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. Consistency of the penalty with any table of penalties an agency may have . You neither came to work nor did you call in your absence. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 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. 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. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. Merit Systems Protection Board still follows today. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Conclusions and vague statements do not hold much weight with third parties. Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. 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). Also any awards or accolades the employee has would be mitigating in nature. 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. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Consistency of the penalty with any applicable agency table of penalties; 8. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. { 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. Similar offenses can be used to guide penalty selection.