Berry & Berry PLLC. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA|
)cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 280 (1981). 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. 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 Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Contact your employee relations advisor to get the information to fill in the blanks. 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. In many cases, managers act as deciding officials in discipline cases. 72 0 obj
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This is because it puts you on notice of the penalties which is factor #9, below. Yes___
No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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 . 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. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. If not, include delivery confirmation by the postal or delivery service. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). past performance). 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. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Relevant? (Use sample 1). What if I do not agree with managements analysisof a specific Douglas Factor? 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. ______________________________ __________________
(Name) (Date)
Sample:
If employee cannot be reached personally at the time of the proposal:
I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. What every federal employee facing discipline should be familiar with: The Douglas Factors. Ultimately, the more credible evidence you can provide to support your position the better. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 502, 508 (1994) (holding that because 31 U.S.C. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. They likely held the same job you holdat some point in the past. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. If you are low level employee with no supervisory functions this factor should have some mitigating value. endstream
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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. Factor: Employee's . Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. Specification #2. %PDF-1.5
The consistency of the penalty with any applicable agency table of penalties; 8. This factor lends itself most to employees arguing for leniency in their case. 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. xfg! Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). A supervisor cannot just say it; he/she has to prove it. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Explanation, if relevant:
(7) Consistency of the penalty with any applicable agency table of penalties. 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. 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 . So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. 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. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Cir. Employees who can appeal an adverse action to the Board have constitutional due process rights. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. COPYRIGHT 2023. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. EAP can be reached by calling 1-800-XXX-XXXX. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Yes___
No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. ^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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Which is why Federal Employee Professional Liability Insurance is critical. 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 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. Regardless, try to avoid getting into an argument with management over factors. 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 fifth Factor relates to an employees ability to do their job relative to the specific offense committed. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Similar offenses can be used to guide penalty selection. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. This article covers the Douglas Factors. 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. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. 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 . Do you need a table of penalties in OPM? 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? Did the employee have access to a handbook that detailed proper procedure and policy? stream
Managers must also consider the scope of the misconduct in the context of an employees position and job duties. !%7K81E8zi. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. This means you should provide objective facts to support your arguments if you can. 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. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Deciding officials should do a Douglas analysis in every case, except when Congress . The final Douglas Factor asks both manager and employee to consider alternative penalties. Yes___
No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. For example, an allegation of dishonesty would be treated . These are known as Douglas factors. 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. 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. WA What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Explanation, if relevant:
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Why can such behavior not be tolerated? Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. 2015). Just knowing the rules, however, cant fully protect you if a case should arise. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Let me give you an example. Factor: Consistency with table of penalties 2. [;C;@){
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If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 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. It is important that you really highlightthefactors that are in your favor. See Douglas v. Veterans Administration, 5 M.S.P.R. If this is impractical to do, use Sample 2. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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 . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. MSPB decision. 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. Discipline can range from letters of reprimand to short suspensions. Cir. A Table of Penalties is a list of . We need to specifically state why there is erosion of supervisory confidence. posted June 9, 2003. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Postal Service, 634 F.3d 1274, 1282 (Fed. You will be notified in writing of the final decision. Cir. The site is secure. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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). 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:#/ The Douglas factors 8. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Cir. The key is credibility. If you are looking for a representative, note that we are not taking on any cases at this time. 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. 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? 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Consistency of the penalty with any table of penalties an agency may have . 10.Right to Reply Paragraph:
Sample:
This notice is a proposal and not a decision. Additionally, your coworkers have their own assignments. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Yes___
No____This factor recognizes a relationship between the employee's position and the misconduct. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme.