If the person signed for receipt of the letter include that information. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? <> 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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 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. Suite 305 The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. How do you handle these aggravating factors? 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. In these circumstances, appropriate analysis of this factor may result in considering 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. You neither came to work nor did you call in your absence. Cir. 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. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Douglas Factors for Federal Employees - berrylegal a. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. what extent, the "Douglas" factors come into play or how egregious the act was. Relevant? PDF The Douglas Factors - Energy 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. This article covers the Douglas Factors. Federal government websites often end in .gov or .mil. 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. 1985). The reason(s) for this action is (are) specified below. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. removal). If not, include delivery confirmation by the postal or delivery service. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. @ 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 . A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Consistency of the penalty with any table of penalties an agency may have . Can an employee take responsibility, correct their behavior and come back to the job? Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. This Douglas factor is not one of the more commonly cited Douglas factors. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Remain calm, deferential and respectful at all times. 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. %PDF-1.6 % 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. PDF Douglas Factors In Depth - Letter Carrier Connection endobj If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. The consistency of the penalty with any applicable agency table of penalties; 8. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. 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. Don't force misconduct into a listed offense unless it accurately fits. They know the stress of a career, they know how life can be difficult. * Douglas v. Veterans Administration, 5 M.S.P.R. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Ultimately, the more credible evidence you can provide to support your position the better. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. hbbd``b`:$ Hd V$D? Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. The Douglas factors are also referred to as mitigating factors. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. For more information, visit WrightUSA.com. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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 . 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. This factor lends itself most to employees arguing for leniency in their case. The Douglas Factors should be considered in selecting a penalty. 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. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Do you need a table of penalties in OPM? Private sector cases are drastically different. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. In theory, discipline should be both corrective and progressive. The final Douglas Factor asks both manager and employee to consider alternative penalties. 0 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Determining the Penalty - United States Merit Systems Protection Board Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The Douglas Factors - Melville Johnson You need to look at the specifics of your case in light of the twelve factors. 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. 2012) (internal citations and punctuation omitted). Whether you use two charges in this case will depend upon the evidence available. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. This one is pretty self-explanatory. What kind of recovery can I get in my discrimination case? PDF Committee on Oversight and Government Reform U.S. House of A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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 . The employee's job level and type of employment . Your absence was not approved by your supervisor. Why can such behavior not be tolerated? Factor 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. Any replies submitted will be given full consideration. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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. While each case is different, seeking alternatives may be useful. Note. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. Douglas Factors in Federal Employment - InformedFED h[M+}LX,? MSPB decision. Sample 1: I have attached the material relied on to support this proposed removal. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Check with your labor relations advisor. 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. A supervisor cannot just say it; he/she has to prove it. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. Cir. 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. Managers must apply penalties that are similar to those imposed in like cases. PDF Douglas Factors - AFGE The Federal Starr is a publication by Starr Wright USA. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Managers must take an employees propensity for rehabilitation into account. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. For example, an allegation of dishonesty would be treated . %%EOF the case of Douglas vs. Veterans Administration, 5 M.S.P.R. When looking for an attorney make sure they have experience handling federal-sector employment cases. Press Briefing by Press Secretary Karine Jean-Pierre 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. That translates into harsher penalties for repeat offenders. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? Conclusions and vague statements do not hold much weight with third parties. Sample: Specification #1. Do they have a positive track record? When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 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 . PDF Table 1-1: Table of Penalties for Various Offenses - United States Army stream 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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. If you list a factor you must explain why it is relevant. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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? However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. endstream endobj startxref PDF DOI Department Manual Table of Offenses and Penalties generadores de diesel precios 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? EachDouglas Factor can work for or against an employee depending on their specific case. They likely held the same job you holdat some point in the past. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. COPYRIGHT 2023. 280, 290 (1981). Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 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 . Relevant? 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. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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; . In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Relevant? PDF The Douglas Factors - National Federation of Federal Employees 5 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). Additionally, your coworkers have their own assignments. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Cir. The Douglas Factors . 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. Regardless, try to avoid getting into an argument with management over factors. 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. If you are looking for a representative, note that we are not taking on any cases at this time. You neither came to work nor did you call in your absence. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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 . By William N. Rudman . 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. If you are low level employee with no supervisory functions this factor should have some mitigating value. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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.
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