Offenses related to intoxicants. . 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. 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. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. How the factors will be applied in your disciplinary case depends on the specifics of your case. * Douglas v. Veterans Administration, 5 M.S.P.R. Explanation, if relevant: (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.Relevant? This one is pretty self-explanatory. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Factor: Nature and seriousness 9. 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. This factor looks to the status of the employee. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Discipline can range from letters of reprimand to short suspensions. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. PDF The Douglas Factors Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. This factor lends itself most to employees arguing for leniency in their case. 280, 305-06 (1981). Managers must take an employees propensity for rehabilitation into account. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Similar offenses can be used to guide penalty selection. To some extent, this is a subjective question. 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. What is effect of the misconduct charged? 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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 first factor looks at the severity of the misconduct and how itrelates to the position the employee has. This is because it puts you on notice of the penalties which is factor #9, below. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. 280 (1981). 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. Cir. The idea is that discipline is meantto be corrective and progressive. Relevant? 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). The Douglas Factors - Melville Johnson 51, 8 (2001). 1 0 obj generadores de diesel precios 280 (1981) These factors are used to explain why the penalty was chosen. Only those Douglas Factors relevant to each case need be considered. The Douglas Factors . ^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. The Douglas factors 8. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Press Briefing by Press Secretary Karine Jean-Pierre Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. Managers and supervisors should properly document the employee misconduct. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream 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 mitigating factor is one that suggests the discipline be mitigated, or lowered. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. 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. The Douglas Factors: What You Need to Know - Medium Agency's table of penalties recognizes this severity in establishing ranges of penalties for Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. 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 a. 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. 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. The Douglas Factors - United States Office of Personnel Management What every federal employee facing discipline should be familiar with: The Douglas Factors. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Merit Systems Protection Board still follows today. 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. 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. 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. Factor 3: The employees past disciplinary record. On (DATE), you were scheduled to report to work at (TIME). Sample 2: You have the right to review the material relied on to support this proposed removal. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Do they have a positive track record? Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. past performance). 9 Ward v. U.S. Obtain insurance protection for your career today. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. 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. Cir. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. These 12 factors play a key role in the outcome of federal employee discipline cases. The first time an employee is 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. 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. 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. 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). to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Relevant? <>/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>> However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Relevant? Your job as an employee is to support your position as best as you possibly can. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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 . Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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:#/ Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 2012) (internal citations and punctuation omitted). <> stream A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. Federal agencies may take disciplinary action against employees who engage in misconduct. When looking for an attorney make sure they have experience handling federal-sector employment cases. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. Only relevant factors must be included. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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 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. 8.Douglas Factor Analysis. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Consistency of the penalty with any table of penalties an agency may have . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Management has likely even required you to review the table and sign a form asserting your knowledge of it. On (DATE), you were scheduled to report to work at (TIME). 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; . The Douglas factors are also referred to as mitigating factors. 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. Ultimately, managers are people too. Ultimately, the more credible evidence you can provide to support your position the better. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. We need to specifically state why there is erosion of supervisory confidence. 10 Ward v. U.S. xfg! EAP can be reached by calling 1-800-XXX-XXXX. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 2278 0 obj <>stream By William N. Rudman . Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Visit WrightUSA.com to start your policy! Such cases call into question an employees ability to perform their specific job duties with integrity. 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. Sometimes management may misapply factors, or misconstrue them. 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. Has an employee been on the job for a long time? 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? 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 . 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. @b o $&F Sq70 # Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Which is why Federal Employee Professional Liability Insurance is critical. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Factor 11: Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. Before sharing sensitive information, make sure youre on a federal government site. endobj A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. what extent, the "Douglas" factors come into play or how egregious the act was. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. -What kind of recovery can I get in my discrimination case? See Douglas v. Veterans Administration, 5 M.S.P.R. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. This has often been considered one of the most important Douglas factors by the MSPB. If you list a factor you must explain why it is relevant. WA Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. It is important that you really highlightthefactors that are in your favor. See U.S. 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 Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). What is the table of penalties? - idswater.com 280 (1981) These factors are used to explain why the penalty was chosen. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE 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. 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. A deciding official must consider specific factors in determining the reasonableness of the penalty. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Suite 305 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. 72 0 obj <>stream If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The notoriety of the offense or its impact upon the reputation of the agency; . rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz What if I do not agree with managements analysisof a specific Douglas Factor? We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. 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. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. But do not highlight them either. 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 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?
Mr Softee Killer, Alaska Property For Sale Cheap, Diy Shipping Container Wheels, Blackish Baby Devante Dies, Articles T