This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 51, 8 (2001). Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. disciplinary situations. If the person signed for receipt of the letter include that information. Which is why Federal Employee Professional Liability Insurance is critical. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 3 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). Additionally statements from managers or co-workers as to your ability and integrity will be helpful. See Douglas v. Veterans Administration, 5 M.S.P.R. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Managers and supervisors should properly document the employee misconduct. removal). The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Relevant? 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 . Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. It is important that you really highlightthefactors that are in your favor. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Before sharing sensitive information, make sure youre on a federal government site. Discipline can range from letters of reprimand to short suspensions. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. When looking for an attorney make sure they have experience handling federal-sector employment cases. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). How the factors will be applied in your disciplinary case depends on the specifics of your case. Ultimately, the more credible evidence you can provide to support your position the better. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. 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; . Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. 280, 290 (1981). When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). 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. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Merit Systems Protection Board still follows today. This Quick Start Guide covers the following Key Points: 1. 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? 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 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. Visit WrightUSA.com to start your policy! Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. This factor is generally an afterthought for both management and employees. Consistency of the penalty with any applicable agency table of penalties; 8. This Douglas factor is important and we use this argument in our representation of federal employees. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Plaza America In some instances, you may want to request that management reconsider your case. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Deciding officials should do a Douglas analysis in every case, except when Congress . One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. %%EOF 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. EachDouglas Factor can work for or against an employee depending on their specific case. But they may refuse to. Discipline can range from letters of reprimand to short suspensions. 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 . 5 Douglas v. Veterans Administration, 5 M.S.P.R. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. %PDF-1.5 % For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? xfg! The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Cir. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. COPYRIGHT 2023. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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 . An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. The .gov means its official. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. A deciding official must consider specific factors in determining the reasonableness of the penalty. In theory, discipline should be both corrective and progressive. These factors are the following: 1. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. endobj For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Relevant? When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. 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 2278 0 obj <>stream The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Douglas Factor Analysis. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. You neither came to work nor did you call in your absence. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. 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. You should review the table to make sure that your discipline is in keeping with this table. Relevant? Sample: Specification #1. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Federal agencies may take disciplinary action against employees who engage in misconduct. 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. 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. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Negligent or accidental incidents will be viewed more favorably than intentional acts. The more notorious the offense you commit the more severe the discipline you will face. This factor looks to the status of the employee. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Specific evidence/testimony as to why an employee can no longer be trusted is critical. Berry & Berry PLLC. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. !%7K81E8zi. The Douglas factors 8. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Cir. Ultimately, managers are people too. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. 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? 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. 10 Ward v. U.S. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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? Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? % This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Your absence was not approved by your supervisor. 1 0 obj Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline.