Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. removal). This Factor takes mitigating circumstances into account. 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. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. Federal government websites often end in .gov or .mil. 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. 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. 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. Factor 10: Potential for the employees rehabilitation. Private sector cases are drastically different. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 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. That translates into harsher penalties for repeat offenders. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 1 0 obj Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. what extent, the "Douglas" factors come into play or how egregious the act was. 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 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). 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 notoriety of the offense or its impact upon the reputation of the agency; . These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. 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. A deciding official must consider specific factors in determining the reasonableness of the penalty. 1985). 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 . 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. You will be notified in writing of the final decision. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. The Douglas Factors . Your absence was not approved by your supervisor. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 8.Douglas Factor Analysis. An official website of the United States government. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Govexec.com . 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). 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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 consistency of the penalty with any applicable agency table of penalties; 8. 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. Cir. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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? Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. endobj The final Douglas Factor asks both manager and employee to consider alternative penalties. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. The employee's job level and type of employment . @ 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 . In some instances, you may want to request that management reconsider your case. However, if you properly argue this factor it can go a long way towards helping your case. 72 0 obj <>stream How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Did management send out a memo clarifying rules? Additionally, your coworkers have their own assignments. The Douglas factors are: (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; 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. 280, 305-06 (1981). Sample: Specification #1. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. This Douglas factor is important and we use this argument in our representation of federal employees. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. 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. Factor: Employee's . 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. 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. Why can such behavior not be tolerated? The .gov means its official. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. EachDouglas Factor can work for or against an employee depending on their specific case. 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. Employees who can appeal an adverse action to the Board have constitutional due process rights. (Use sample 1). 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Do you need a table of penalties in OPM? First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. 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:#/ Suite 305 The Douglas factors are also referred to as mitigating factors. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. 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. Internal Control Evaluation, page 21 . 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. 3 0 obj disciplinary situations. What is effect of the misconduct charged? 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Managers must apply penalties that are similar to those imposed in like cases. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. 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? The Douglas factors 8. @b o $&F Sq70 # ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Factor 9: The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Ultimately, the more credible evidence you can provide to support your position the better. This article covers the Douglas Factors. <> unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. A Table of Penalties is a list of . For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. Before sharing sensitive information, make sure youre on a federal government site. What every federal employee facing discipline should be familiar with: The Douglas Factors. This factor lends itself most to employees arguing for leniency in their case. endobj Let me give you an example. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. 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. 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. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. See U.S. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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. 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P hb```f``2c`a`,c`@ r, ^Ma the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 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. This is because it puts you on notice of the penalties which is factor #9, below. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. If the person signed for receipt of the letter include that information. 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, an allegation of dishonesty would be treated . You should review the table to make sure that your discipline is in keeping with this table. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. This Douglas factor is not one of the more commonly cited Douglas factors. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 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. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Managers must take an employees propensity for rehabilitation into account. 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 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. Consistency of the penalty with any applicable agency table of penalties; 8. Relevant? Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. See Douglas v. Veterans Administration, 5 M.S.P.R. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Specification #2. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. When looking for an attorney make sure they have experience handling federal-sector employment cases. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 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. 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.
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