Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). This Factor takes mitigating circumstances into account. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Such cases call into question an employees ability to perform their specific job duties with integrity. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 10 Ward v. U.S. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Additionally, this factor looks at intent. 2 0 obj 3 Douglas v. Veterans Administration, 5 M.S.P.R. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. If the person signed for receipt of the letter include that information. The site is secure. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Specific evidence/testimony as to why an employee can no longer be trusted is critical. COPYRIGHT 2023. 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. 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. Any replies submitted will be given full consideration. 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 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. posted June 9, 2003. endstream endobj startxref Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Specification #2. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. 1 0 obj So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Do you need a table of penalties in OPM? If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. The Douglas Factors include: 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. 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. 72 0 obj <>stream Negligent or accidental incidents will be viewed more favorably than intentional acts. Do not deny the existence of bad facts. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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. 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. This article covers the Douglas Factors. You should not list a factor unless it is relevant. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. endobj <>/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>> Managers must apply penalties that are similar to those imposed in like cases. 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. For example, an allegation of dishonesty would be treated . This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. 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). After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. You neither came to work nor did you call in your absence. 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. An official website of the United States government. 280 (1981). The reason(s) for this action is (are) specified below. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios The Douglas Factors should be considered in selecting a penalty. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. MSPB decision. Federal government websites often end in .gov or .mil. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. 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 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. affidavits, performance ratings, SF-50s, letters of commendation) for the record. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 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 right to answer orally does not include the right to a formal hearing with examination of witnesses. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. stream Postal Service, 634 F.3d 1274, 1282 (Fed. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. 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. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. What kind of recovery can I get in my discrimination case? [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Any personal issues going on around the time of the misconduct should be brought to the attention of management. 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. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. By William N. Rudman . What every federal employee facing discipline should be familiar with: The Douglas Factors. If you are looking for a representative, note that we are not taking on any cases at this time. Do they have a positive track record? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). But do not highlight them either. 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 . Consistency of the penalty with any table of penalties an agency may have . Discipline can range from letters of reprimand to short suspensions. 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? These terms are used commonly in Douglas Factors application. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Additionally, your coworkers have their own assignments. The fourth Douglas Factor requires managers to take an employees past performance into account. 2278 0 obj <>stream hbbd``b`:$ Hd V$D? hb```f``2c`a`,c`@ r, ^Ma 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. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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. 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. 9 Ward v. U.S. If you want you can download and read the fullDouglas v. V.A. ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. This is because it puts you on notice of the penalties which is factor #9, below. <>>> 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. This one is pretty self-explanatory. 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 cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Similar offenses can be used to guide penalty selection. <> This factor lends itself most to employees arguing for leniency in their case. 1999). 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. EachDouglas Factor can work for or against an employee depending on their specific case. The employee's job level and type of employment . The final Douglas Factor asks both manager and employee to consider alternative penalties. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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 Lets say you missed a deadline for an important assignment and management has proposed removal. You will be notified in writing of the final decision. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Cir. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n . Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. what extent, the "Douglas" factors come into play or how egregious the act was. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision.