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Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? hb```f``2c`a`,c`@ r, ^Ma 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. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. You neither came to work nor did you call in your absence. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. 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. 3 0 obj Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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. 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. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Internal Control Evaluation, page 21 . [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. EAP can be reached by calling 1-800-XXX-XXXX. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Heres what anyone who works for the federal government needs to know about the Douglas Factors. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. A deciding official must consider specific factors in determining the reasonableness of the penalty. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Cir. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. The first time an employee is 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. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. 4 0 obj ^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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Factor: Employee's . Regardless, try to avoid getting into an argument with management over factors. 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. 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. This means you should provide objective facts to support your arguments if you can. 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 Douglas Factors . a. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. posted June 9, 2003. endobj Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). %PDF-1.5 % A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Note. 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. 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. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The fourth Douglas Factor requires managers to take an employees past performance into account. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 8.Douglas Factor Analysis. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. 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. Relevant? 2278 0 obj <>stream The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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? Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. The key is credibility. 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:#/ 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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 generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 9 Ward v. U.S. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Relevant? 5 Douglas v. Veterans Administration, 5 M.S.P.R. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . These terms are used commonly in Douglas Factors application. 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. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Let me give you an example. <> Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. A mitigating factor is one that suggests the discipline be mitigated, or lowered. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. Your absence was not approved by your supervisor. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Can someone help me present the Douglas Factors to management? This article covers the Douglas Factors. If you are looking for a representative, note that we are not taking on any cases at this time. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. Other times it may mean providing some evidence to management to further support your position. 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. This Factor takes mitigating circumstances into account. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. How does action taken promote the efficiency of the service? This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. The consistency of the penalty with any applicable agency table of penalties; 8. Only those Douglas Factors relevant to each case need be considered. 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. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 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 . 280, 290 (1981). * Douglas v. Veterans Administration, 5 M.S.P.R. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. They know the stress of a career, they know how life can be difficult. 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. Plaza America 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. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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 This one is pretty self-explanatory. 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. Factor 3: The employees past disciplinary record.

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