The Douglas Factors . accruing multiple instances of discipline can lead you on the fast track to removal from federal service. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. 1999). <> Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Sample 1: I have attached the material relied on to support this proposed removal. How does action taken promote the efficiency of the service? 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. 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. Factor: Employee's . You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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. Reston, VA 20190. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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 Additionally, the Board cannot review the reasonableness of a penalty that is set by law. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. posted June 9, 2003. 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. 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. 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. The Douglas factors are also referred to as mitigating factors. Ultimately, the more credible evidence you can provide to support your position the better. 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. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 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. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. Do they have a positive track record? yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. The notoriety of the offense or its impact upon the reputation of the agency; . A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. %PDF-1.6 % Sometimes management may misapply factors, or misconstrue them. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. It is important to rebut these issues in a Douglas factor defense. 5 Douglas v. Veterans Administration, 5 M.S.P.R. This Douglas factor is important and we use this argument in our representation of federal employees. Cir. On the surface, many incidents of misconduct may seem to be similar. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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 . 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. @b o $&F Sq70 # But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Be clear, terse, and apologetic. Cir. If not, include delivery confirmation by the postal or delivery service. With responsibility comes greater obligation and scrutiny. These factors are the following: 1. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. A deciding official must consider specific factors in determining the reasonableness of the penalty. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. In some instances, you may want to request that management reconsider your case. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. What if I do not agree with managements analysisof a specific Douglas Factor? 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). It is more often used to attempt to aggravate a disciplinary penalty. This Factor takes mitigating circumstances into account. Relevant? 0 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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? In theory, discipline should be both corrective and progressive. Starr Wright USA is the nations leading provider of FEPLI. Factor 7: Consistency of the penalty with any applicable agency table of penalties. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. COPYRIGHT 2023. This one is pretty self-explanatory. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. In many cases, managers act as deciding officials in discipline cases. 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. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 280 (1981) These factors are used to explain why the penalty was chosen. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Your job as an employee is to support your position as best as you possibly can. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. endobj B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# This factor looks to the status of the employee. A supervisor cannot just say it; he/she has to prove it. A mitigating factor is one that suggests the discipline be mitigated, or lowered. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Let me give you an example. Remain calm, deferential and respectful at all times. 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. They know the stress of a career, they know how life can be difficult. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. * Douglas v. Veterans Administration, 5 M.S.P.R. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. 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. -What kind of recovery can I get in my discrimination case? Cir. However, despite the importance of these criteria, many employees arent familiar with them. 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 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 Managers and supervisors should properly document the employee misconduct. You neither came to work nor did you call in your absence. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. Yes___ No____This factor is one of the more technically difficult to apply. 1985). Consistency of the penalty with any table of penalties an agency may have . However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. . Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 72 0 obj <>stream Relevant? Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 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. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 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. Berry & Berry PLLC. The fourth Douglas Factor requires managers to take an employees past performance into account. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. <>/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>> 3 0 obj Do not deny the existence of bad facts. You should review the table to make sure that your discipline is in keeping with this table. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. But do not highlight them either. On (DATE), you were scheduled to report to work at (TIME). 51, 8 (2001). Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. what extent, the "Douglas" factors come into play or how egregious the act was. Explanation, if relevant: (9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. 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. 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. 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 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. Factor: Nature and seriousness 9. 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. Postal Service, 634 F.3d 1274, 1282 (Fed. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. endobj Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. endstream endobj startxref Douglas Factor Analysis. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. hb```f``2c`a`,c`@ r, ^Ma For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. endobj Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. This is because it puts you on notice of the penalties which is factor #9, below. The site is secure. 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. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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 . These 12 factors play a key role in the outcome of federal employee discipline cases. h[M+}LX,? Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. This article covers the Douglas Factors. Factor 10: Potential for the employees rehabilitation. Plaza America 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Check with your labor relations advisor. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Discipline can range from letters of reprimand to short suspensions. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Relevant? Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. 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. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Factor: Consistency with table of penalties 2. 2012) (internal citations and punctuation omitted). 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties.