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. 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. Only relevant factors must be included. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. This table should be available to you as an employee. 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. MSPB decision. 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. The nature and seriousness of the offense, and its relationship to the employee's . PDF Douglas Factors In Depth - Branch 38 NALC This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Be clear, terse, and apologetic. In theory, discipline should be both corrective and progressive. Can an employee take responsibility, correct their behavior and come back to the job? When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Postal Service, 634 F.3d 1274, 1279 (Fed. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army -What kind of recovery can I get in my discrimination case? PDF Douglas Factors - AFGE The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. 2 0 obj Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. posted June 9, 2003. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Douglas Factors - Postal Reporter @b o $&F Sq70 # This Quick Start Guide covers the following Key Points: 1. 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. 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. Suite 305 Obtain insurance protection for your career today. The Table provides for more serious penalties for . Postal Service, 634 F.3d 1274, 1282 (Fed. 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. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. This factor is generally an afterthought for both management and employees. See Douglas v. Veterans Administration, 5 M.S.P.R. This factor looks to the status of the employee. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. If you have been disciplined before you will face harsher discipline going forward. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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 . It is more often used to attempt to aggravate a disciplinary penalty. The national media picked the story up, and it was very detrimental to the agency. Do you need a table of penalties in OPM? 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. 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. While each case is different, seeking alternatives may be useful. 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. This means you should provide objective facts to support your arguments if you can. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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). 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. 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. Berry & Berry PLLC. 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? 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. ALL RIGHTS RESERVED. Factor: Employee's . Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Table Of Penalties Douglas Factors Misconduct and Discipline | U.S. Department of the Interior Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. For example, a law enforcement officer is charged with enforcing laws. The Douglas Factors . An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream 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). Before sharing sensitive information, make sure youre on a federal government site. 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). 1 0 obj Relevant? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. Why can such behavior not be tolerated? 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Yes___ No____This factor is one of the more technically difficult to apply. They know the stress of a career, they know how life can be difficult. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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). PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees The site is secure. Reston, VA 20190. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. If the person signed for receipt of the letter include that information. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. Employees who can appeal an adverse action to the Board have constitutional due process rights. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 3 0 obj PDF Committee on Oversight and Government Reform U.S. House of Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. 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. Relevant? Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Cir. PDF The Douglas Factors Visit WrightUSA.com to start your policy! Additionally, the Board cannot review the reasonableness of a penalty that is set by law. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. past performance). If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Additionally, this factor looks at intent. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Federal agencies may take disciplinary action against employees who engage in misconduct. This is because it puts you on notice of the penalties which is factor #9, below. The fourth Douglas Factor requires managers to take an employees past performance into account. This factor lends itself most to employees arguing for leniency in their case. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios PDF The Douglas Factors - Energy Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Sample 2: You have the right to review the material relied on to support this proposed removal. 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? When looking for an attorney make sure they have experience handling federal-sector employment cases. Douglas Factor Mitigation for Federal Employees However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. 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. Plaza America They likely held the same job you holdat some point in the past. The Douglas Factors should be considered in selecting a penalty. 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. 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. 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. 2012) (internal citations and punctuation omitted). It is important that you really highlightthefactors that are in your favor. The Douglas factors are also referred to as mitigating factors. The final Douglas Factor asks both manager and employee to consider alternative penalties. Cir. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 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 . 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. The result will turn on the specifics of your case and the procedural posture as well. You should not list a factor unless it is relevant. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Factor 7: Consistency of the penalty with any applicable agency table of penalties. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. PDF The Douglas Factors - United States Office of Personnel Management accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors?
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