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. If the person signed for receipt of the letter include that information. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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). 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). 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. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Private sector cases are drastically different. If you want you can download and read the fullDouglas v. V.A. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. stream With responsibility comes greater obligation and scrutiny. <>/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>> For instance, did the employee have access to the table of penalties? %%EOF PDF Douglas Factors In Depth - Letter Carrier Connection Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 280 (1981) These factors are used to explain why the penalty was chosen. Berry & Berry PLLC. Do you need a table of penalties in OPM? Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. You should not list a factor unless it is relevant. EAP can be reached by calling 1-800-XXX-XXXX. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. On the surface, many incidents of misconduct may seem to be similar. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. 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 employee's job level and type of employment . If this is impractical to do, use Sample 2. Cir. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Sample 1: I have attached the material relied on to support this proposed removal. 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 . For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Don't force misconduct into a listed offense unless it accurately fits. See U.S. 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). It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Suite 305 Whether you use two charges in this case will depend upon the evidence available. Factor: Consistency with table of penalties 2. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. They know the stress of a career, they know how life can be difficult. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. See Douglas v. Veterans Administration, 5 M.S.P.R. Remain calm, deferential and respectful at all times. Which is why Federal Employee Professional Liability Insurance is critical. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. 1999). 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. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? EachDouglas Factor can work for or against an employee depending on their specific case. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The final Douglas Factor asks both manager and employee to consider alternative penalties. . 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. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. The Federal Starr is a publication by Starr Wright USA. While each case is different, seeking alternatives may be useful. The national media picked the story up, and it was very detrimental to the agency. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Other times it may mean providing some evidence to management to further support your position. Consistency of the penalty with any applicable agency table of penalties; 8. 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. Misconduct and Discipline | U.S. Department of the Interior 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Press Briefing by Press Secretary Karine Jean-Pierre This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. -What kind of recovery can I get in my discrimination case? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. 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. The idea is that discipline is meantto be corrective and progressive. For example, an allegation of dishonesty would be treated . 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. Why can such behavior not be tolerated? PDF Committee on Oversight and Government Reform U.S. House of a. 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. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Specific evidence/testimony as to why an employee can no longer be trusted is critical. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Douglas Factors - Postal Reporter Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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 . Sample 2: You have the right to review the material relied on to support this proposed removal. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. 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. Cir. 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. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Did management send out a memo clarifying rules? 72 0 obj <>stream 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. COPYRIGHT 2023. 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. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Starr Wright USA is the nations leading provider of FEPLI. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Relevant? The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. 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 . You need to look at the specifics of your case in light of the twelve factors. But they may refuse to. Internal Control Evaluation, page 21 . Federal agencies may take disciplinary action against employees who engage in misconduct. Lets say you missed a deadline for an important assignment and management has proposed removal. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. . But do not highlight them either. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 11700 Plaza America Drive endobj However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. 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. If not, include delivery confirmation by the postal or delivery service. !%7K81E8zi. In theory, discipline should be both corrective and progressive. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Has an employee been on the job for a long time? Reston, VA 20190. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. hbbd``b`:$ Hd V$D? Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . There are certain standards of behavior and conduct expected of employees by our external and internal customers. 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? PDF The Douglas Factors - United States Office of Personnel Management This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Regardless, try to avoid getting into an argument with management over factors. 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 . In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. This Quick Start Guide covers the following Key Points: 1. The Douglas Factors should be considered in selecting a penalty. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. See Douglas v. Veterans Administration, 5 M.S.P.R. xfg! Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. For more information, visit WrightUSA.com. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. disciplinary situations. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. PDF The Douglas Factors - National Federation of Federal Employees What kind of recovery can I get in my discrimination case? Be clear, terse, and apologetic. 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. 502, 508 (1994) (holding that because 31 U.S.C. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. A supervisor cannot just say it; he/she has to prove it. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. h[M+}LX,? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Obtain insurance protection for your career today. <> 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. Factor 10: Potential for the employees rehabilitation. You neither came to work nor did you call in your absence. A mitigating factor is one that suggests the discipline be mitigated, or lowered.
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