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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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). !%7K81E8zi. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r This one is pretty self-explanatory. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. If you want you can download and read the fullDouglas v. V.A. 51, 8 (2001). Your job as an employee is to support your position as best as you possibly can. You neither came to work nor did you call in your absence. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Factor 10: Potential for the employees rehabilitation. Relevant? The site is secure. For more information, visit WrightUSA.com. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. The Douglas factors are also referred to as mitigating 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. Yes___ No____This factor is one of the more technically difficult to apply. EachDouglas Factor can work for or against an employee depending on their specific case. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Cir. The .gov means its official. 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. In theory, discipline should be both corrective and progressive. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. An official website of the United States government. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. %PDF-1.5 % The result will turn on the specifics of your case and the procedural posture as well. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. * Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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 . accruing multiple instances of discipline can lead you on the fast track to removal from federal service. A deciding official must consider specific factors in determining the reasonableness of the penalty. The first time an employee is 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Consistency of the penalty with any table of penalties an agency may have . Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. For instance, did the employee have access to the table of penalties? An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. It is more often used to attempt to aggravate a disciplinary penalty. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. There are certain standards of behavior and conduct expected of employees by our external and internal customers. 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:#/ @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. 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? 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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. 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. If you have been disciplined before you will face harsher discipline going forward. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Govexec.com . As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Misconduct is also considered more severe if it is done maliciously or for personal gain. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream With responsibility comes greater obligation and scrutiny. 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. The Douglas Factors should be considered in selecting a penalty. Reston, VA 20190. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Only relevant factors must be included. This factor looks to the status of the employee. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. what extent, the "Douglas" factors come into play or how egregious the act was. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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 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. <> 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. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Managers and supervisors should properly document the employee misconduct. 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. 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. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Starr Wright USA is the nations leading provider of FEPLI. Factor: Notoriety and impact 3. 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. 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. The idea is that discipline is meantto be corrective and progressive. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Managers must also consider the scope of the misconduct in the context of an employees position and job duties. If not, include delivery confirmation by the postal or delivery service. If the person signed for receipt of the letter include that information. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Plaza America Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Private sector cases are drastically different. 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 Managers must apply penalties that are similar to those imposed in like cases. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 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. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. 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. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. In many cases, managers act as deciding officials in discipline cases. 9 Ward v. U.S. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. A knowledge of the Douglas Factors is helpful for both federal employees and managers. See Douglas v. Veterans Administration, 5 M.S.P.R. Sample 1: I have attached the material relied on to support this proposed removal. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. You need to look at the specifics of your case in light of the twelve factors. Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. The reason(s) for this action is (are) specified below. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Discipline can range from letters of reprimand to short suspensions. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. endstream endobj startxref 49 0 obj <> endobj If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Just knowing the rules, however, cant fully protect you if a case should arise. 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. 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. 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. Any personal issues going on around the time of the misconduct should be brought to the attention of management. endobj 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. We are currently not taking any new cases at this time. xfg! -What kind of recovery can I get in my discrimination case? Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Lets say you missed a deadline for an important assignment and management has proposed removal. The national media picked the story up, and it was very detrimental to the agency. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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. % 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. Conclusions and vague statements do not hold much weight with third parties. Cir. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 1 0 obj While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). 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. How the factors will be applied in your disciplinary case depends on the specifics of your case. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). This means you should provide objective facts to support your arguments if you can. 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 nature and seriousness of the offense, and its relationship to the employee's . 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. 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. The Douglas Factors . The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. That translates into harsher penalties for repeat offenders. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Internal Control Evaluation, page 21 . You should review the table to make sure that your discipline is in keeping with this table. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Your absence was not approved by your supervisor. When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. 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. If you list a factor you must explain why it is relevant. 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. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. This article covers the Douglas Factors.
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