NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 502, 508 (1994) (holding that because 31 U.S.C. hbbd``b`:$ Hd V$D? PDF Douglas Factors In Depth - Branch 38 NALC Similar offenses can be used to guide penalty selection. 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Berry & Berry PLLC. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 2 0 obj Lets say you missed a deadline for an important assignment and management has proposed removal. 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. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. This means you should provide objective facts to support your arguments if you can. 49 0 obj <> endobj Be clear, terse, and apologetic. When looking for an attorney make sure they have experience handling federal-sector employment cases. Just knowing the rules, however, cant fully protect you if a case should arise. What if I do not agree with managements analysisof a specific Douglas Factor? 1985). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. However, despite the importance of these criteria, many employees arent familiar with them. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. You should review the table to make sure that your discipline is in keeping with this table. Do you need a table of penalties in OPM? Deciding officials should do a Douglas analysis in every case, except when Congress . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Which is why Federal Employee Professional Liability Insurance is critical. Cir. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. Employees who can appeal an adverse action to the Board have constitutional due process rights. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. This factor is generally an afterthought for both management and employees. ^K[i>P+hvSbfpNK"ly(O$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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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 they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. COPYRIGHT 2023. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Additionally, this factor looks at intent. Internal Control Evaluation, page 21 . Managers and supervisors should properly document the employee misconduct. They likely held the same job you holdat some point in the past. Cir. 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. Sample 1: I have attached the material relied on to support this proposed removal. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Additionally, your coworkers have their own assignments. 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. On (DATE), you were scheduled to report to work at (TIME). 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. 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. 280 (1981) These factors are used to explain why the penalty was chosen. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. endobj @b o $&F Sq70 # Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 51, 8 (2001). PDF DOI Department Manual Table of Offenses and Penalties Relevant? xfg! 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. Sample: Specification #1. PDF The Douglas Factors - Energy If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. Did the employee have access to a handbook that detailed proper procedure and policy? This table should be available to you as an employee. On the surface, many incidents of misconduct may seem to be similar. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. You neither came to work nor did you call in your absence. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. PDF The Douglas Factors - United States Office of Personnel Management What kind of recovery can I get in my discrimination case? Merit Systems Protection Board still follows today. Sample 2: You have the right to review the material relied on to support this proposed removal. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE The .gov means its official. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. 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. Cir. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 280, 305-06 (1981). PDF Committee on Oversight and Government Reform U.S. House of !%7K81E8zi. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. What every federal employee facing discipline should be familiar with: The Douglas Factors. Misconduct is also considered more severe if it is done maliciously or for personal gain. In some instances, you may want to request that management reconsider your case. The right to answer orally does not include the right to a formal hearing with examination of witnesses. If this is impractical to do, use Sample 2. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Douglas Factors - Postal Reporter Factor: Notoriety and impact 3. Do they have a positive track record? Plaza America 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. 72 0 obj <>stream Contact your employee relations advisor to get the information to fill in the blanks. PDF The Douglas Factors - National Federation of Federal Employees 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 Douglas Factors In Depth - Letter Carrier Connection While each case is different, seeking alternatives may be useful. hb```f``2c`a`,c`@ r, ^Ma Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Douglas Factors matters vary from case to case and federal employees should consult with an attorney. A deciding official must consider specific factors in determining the reasonableness of the penalty. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). * Douglas v. Veterans Administration, 5 M.S.P.R. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n What is effect of the misconduct charged? 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. The Table provides for more serious penalties for . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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 . Consistency of the penalty with any table of penalties an agency may have . 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. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 280, 290 (1981). 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. Such cases call into question an employees ability to perform their specific job duties with integrity. Before sharing sensitive information, make sure youre on a federal government site. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Check with your labor relations advisor. The reason(s) for this action is (are) specified below. Other times it may mean providing some evidence to management to further support your position. MSPB decision. Relevant? For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. EachDouglas Factor can work for or against an employee depending on their specific case. 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. How does action taken promote the efficiency of the service? 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? Visit WrightUSA.com to start your policy! Factor: Employee's . For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. You will be notified in writing of the final decision. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. We need to specifically state why there is erosion of supervisory confidence. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? PDF Chapter 4. Hud Table of Offenses and Penalties Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). The Douglas factors 8. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer This one is pretty self-explanatory. past performance). 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. Press Briefing by Press Secretary Karine Jean-Pierre 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). Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. The 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 . (Use sample 1). [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Managers must take an employees propensity for rehabilitation into account. Your job as an employee is to support your position as best as you possibly can. The factors may mitigate or aggravate (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.Relevant? 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor A well presented reply to theproposed discipline can lead to substantial mitigation. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. This Douglas factor is not one of the more commonly cited Douglas factors. 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 - United States Office of Personnel Management The idea is that discipline is meantto be corrective and progressive. Relevant? posted June 9, 2003. 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; A supervisor cannot just say it; he/she has to prove it. ALL RIGHTS RESERVED. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Postal Service, 634 F.3d 1274, 1282 (Fed. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). The fourth Douglas Factor requires managers to take an employees past performance into account. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Ultimately, managers are people too. Table Of Penalties Douglas Factors However, if you properly argue this factor it can go a long way towards helping your case. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. %PDF-1.5 % A Table of Penalties is a list of . These 12 factors play a key role in the outcome of federal employee discipline cases. %%EOF 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. endobj Any personal issues going on around the time of the misconduct should be brought to the attention of management. Offenses related to intoxicants. 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. In some instances this may mean pointing out points of analysis or facts to management if they are unaware.
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