These 12 factors play a key role in the outcome of federal employee discipline cases. 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 . 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Factor: Notoriety and impact 3. The consistency of the penalty with any applicable agency table of penalties; 8. Your absence was not approved by your supervisor. In some instances, you may want to request that management reconsider your case. . This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link PDF DOI Department Manual Table of Offenses and Penalties 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. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. If you are low level employee with no supervisory functions this factor should have some mitigating value. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Your job as an employee is to support your position as best as you possibly can. disciplinary situations. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Can someone help me present the Douglas Factors to management? Additionally, this factor looks at intent. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Cir. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Sometimes management may misapply factors, or misconstrue them. To some extent, this is a subjective question. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. The idea is that discipline is meantto be corrective and progressive. The reason(s) for this action is (are) specified below. What every federal employee facing discipline should be familiar with: The Douglas Factors. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Reston, VA 20190. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Any replies submitted will be given full consideration. The Douglas Factors: What You Need to Know - Medium Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. ^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 argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. These are known as Douglas factors. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . These factors are the following: 1. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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. ALL RIGHTS RESERVED. This factor looks to the status of the employee. Douglas Factors for Federal Employees - berrylegal If you are looking for a representative, note that we are not taking on any cases at this time. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 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. Did the employee have access to a handbook that detailed proper procedure and policy? That translates into harsher penalties for repeat offenders. 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. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Merit Systems Protection Board still follows today. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Offenses related to intoxicants. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. How do you handle these aggravating factors? past performance). Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Suite 305 accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 1 0 obj There are certain standards of behavior and conduct expected of employees by our external and internal customers. 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 . If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. Do they have a positive track record? 280 (1981) These factors are used to explain why the penalty was chosen. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. EAP can be reached by calling 1-800-XXX-XXXX. hb```f``2c`a`,c`@ r, ^Ma 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. See U.S. 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. It is important that you really highlightthefactors that are in your favor. 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. Starr Wright USA is the nations leading provider of FEPLI. Regardless, try to avoid getting into an argument with management over factors. The fourth Douglas Factor requires managers to take an employees past performance into account. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Sample: Specification #1. past performance). Ultimately, the more credible evidence you can provide to support your position the better. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Factor 10: Potential for the employees rehabilitation. Discipline can range from letters of reprimand to short suspensions. They know the stress of a career, they know how life can be difficult. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 2 0 obj The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. What is effect of the misconduct charged? hbbd``b`:$ Hd V$D? 9 Ward v. U.S. Plaza America 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. An official website of the United States government. Douglas Factors - Postal Reporter If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Conclusions and vague statements do not hold much weight with third parties. Remain calm, deferential and respectful at all times. The first time an employee is What is the table of penalties? - idswater.com 280, 302 (1981). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Consistency of the penalty with any applicable agency table of penalties; 8. This means you should provide objective facts to support your arguments if you can. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Can an employee take responsibility, correct their behavior and come back to the job? 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. Govexec.com . In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . In many cases, managers act as deciding officials in discipline cases. endobj In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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 right to answer orally does not include the right to a formal hearing with examination of witnesses. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Only those Douglas Factors relevant to each case need be considered. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. 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. 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 Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. generadores de diesel precios It is important to rebut these issues in a Douglas factor defense. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. This article covers the Douglas Factors. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Such cases call into question an employees ability to perform their specific job duties with integrity. PDF The Douglas Factors - United States Office of Personnel Management (Use sample 1). 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. Managers must take an employees propensity for rehabilitation into account. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. removal). 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Don't force misconduct into a listed offense unless it accurately fits. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. But they may refuse to. We need to specifically state why there is erosion of supervisory confidence. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. This Quick Start Guide covers the following Key Points: 1. 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. 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? The Douglas Factors should be considered in selecting a penalty. The more notorious the offense you commit the more severe the discipline you will face. The Douglas Factors - Melville Johnson We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. For example, a law enforcement officer is charged with enforcing laws. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Cir. 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. The national media picked the story up, and it was very detrimental to the agency. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. For example, an allegation of dishonesty would be treated . 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 !%7K81E8zi. 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. Before sharing sensitive information, make sure youre on a federal government site. 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. They likely held the same job you holdat some point in the past. Managers and supervisors should properly document the employee misconduct. A knowledge of the Douglas Factors is helpful for both federal employees and managers. %%EOF This factor is generally an afterthought for both management and employees. Only relevant factors must be included. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Contact your employee relations advisor to get the information to fill in the blanks. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 2015). 3 0 obj If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ When looking for an attorney make sure they have experience handling federal-sector employment cases. 1999). 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? 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.
Lemon In Coke Benefits, Somerset, Ky Weather 14 Day Forecast, Wichita Lawn And Garden Show 2022, Joey Jones Fox News Salary, Articles T