The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Did management send out a memo clarifying rules? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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? 2 0 obj Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. The nature and seriousness of the offense, and its relationship to the employee's . Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. 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. 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Offenses related to intoxicants. This has often been considered one of the most important Douglas factors by the MSPB. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Sample 2: You have the right to review the material relied on to support this proposed removal. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). How do you handle these aggravating factors? posted June 9, 2003. 280 (1981) These factors are used to explain why the penalty was chosen. But do not highlight them either. These 12 factors play a key role in the outcome of federal employee discipline cases. This Douglas factor is not one of the more commonly cited Douglas factors. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. The Douglas factors 8. Which is why Federal Employee Professional Liability Insurance is critical. 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 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. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. A deciding official must consider specific factors in determining the reasonableness of the penalty. Discipline can range from letters of reprimand to short suspensions. Douglas Factor Analysis. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Misconduct is also considered more severe if it is done maliciously or for personal gain. It is important to rebut these issues in a Douglas factor defense. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Check with your labor relations advisor. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Cir. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. hbbd``b`:$ Hd V$D? By William N. Rudman . 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Factor 1: 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. This Factor takes mitigating circumstances into account. Federal agencies may take disciplinary action against employees who engage in misconduct. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. 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. Cir. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Only relevant factors must be included. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link 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. 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. 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? Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 4 0 obj Factor 10: Potential for the employees rehabilitation. 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. It is important that you really highlightthefactors that are in your favor. 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. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Factor: Notoriety and impact 3. Your job as an employee is to support your position as best as you possibly can. <> Consistency of the penalty with any applicable agency table of penalties; 8. In many cases, managers act as deciding officials in discipline cases. The Douglas Factors should be considered in selecting a penalty. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. The Douglas Factors - Melville Johnson 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 . Similar offenses can be used to guide penalty selection. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. EachDouglas Factor can work for or against an employee depending on their specific case. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. <> 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. 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. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The Federal Starr is a publication by Starr Wright USA. The .gov means its official. 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. If this is impractical to do, use Sample 2. WA 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). Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 3 Douglas v. Veterans Administration, 5 M.S.P.R. 1 0 obj If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. 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. what extent, the "Douglas" factors come into play or how egregious the act was. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 2015). Note. disciplinary situations. removal). Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Negligent or accidental incidents will be viewed more favorably than intentional acts. This Quick Start Guide covers the following Key Points: 1. Private sector cases are drastically different. 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 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. For example, an allegation of dishonesty would be treated . Cir. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees 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. Sometimes management may misapply factors, or misconstrue them. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. However, if you properly argue this factor it can go a long way towards helping your case. The notoriety of the offense or its impact upon the reputation of the agency; . 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Let me give you an example. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Visit WrightUSA.com to start your policy! On (DATE), you were scheduled to report to work at (TIME). Additionally, the Board cannot review the reasonableness of a penalty that is set by law. With responsibility comes greater obligation and scrutiny. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Press Briefing by Press Secretary Karine Jean-Pierre 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. ALL RIGHTS RESERVED. 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. 280 (1981) These factors are used to explain why the penalty was chosen. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Obtain insurance protection for your career today. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Before sharing sensitive information, make sure youre on a federal government site. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Relevant? 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. Deciding officials should do a Douglas analysis in every case, except when Congress . But they may refuse to. Can an employee take responsibility, correct their behavior and come back to the job? For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. %PDF-1.5 The Table provides for more serious penalties for . All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. A supervisor cannot just say it; he/she has to prove it. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. past performance). Ultimately, the more credible evidence you can provide to support your position the better. Has an employee been on the job for a long time? Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army See Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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). Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. 280, 302 (1981). %%EOF 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.
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