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? For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Press Briefing by Press Secretary Karine Jean-Pierre 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Other times it may mean providing some evidence to management to further support your position. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. The Douglas Factors . 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. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. We need to specifically state why there is erosion of supervisory confidence. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Relevant? Managers and supervisors should properly document the employee misconduct. In many cases, managers act as deciding officials in discipline cases. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. This factor is generally an afterthought for both management and employees. 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 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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. A well presented reply to theproposed discipline can lead to substantial mitigation. 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? Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. . They likely held the same job you holdat some point in the past. If the person signed for receipt of the letter include that information. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Which is why Federal Employee Professional Liability Insurance is critical. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. %PDF-1.6 % Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Factor: Consistency with table of penalties 2. A mitigating factor is one that suggests the discipline be mitigated, or lowered. 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). These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. %PDF-1.5 1999). Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. A deciding official must consider specific factors in determining the reasonableness of the penalty. 4 0 obj If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Berry & Berry PLLC. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. You neither came to work nor did you call in your absence. Can someone help me present the Douglas Factors to management? 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? For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. -What kind of recovery can I get in my discrimination case? generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Also any awards or accolades the employee has would be mitigating in nature. Deciding officials should do a Douglas analysis in every case, except when Congress . With responsibility comes greater obligation and scrutiny. 280 (1981) These factors are used to explain why the penalty was chosen. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 2278 0 obj <>stream 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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. %%EOF Managers must also consider the scope of the misconduct in the context of an employees position and job duties. EachDouglas Factor can work for or against an employee depending on their specific case. 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. If you are looking for a representative, note that we are not taking on any cases at this time. The Douglas Factors . 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. Relevant? A knowledge of the Douglas Factors is helpful for both federal employees and managers. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. what extent, the "Douglas" factors come into play or how egregious the act was. The Douglas factors are: (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; Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. How the factors will be applied in your disciplinary case depends on the specifics of your case. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army 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. 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 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. 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. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. hb```f``2c`a`,c`@ r, ^Ma If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. This article covers the Douglas Factors. For example, a law enforcement officer is charged with enforcing laws. Douglas Factors for Federal Employees - berrylegal Ultimately, managers are people too. 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. Postal Service, 634 F.3d 1274, 1282 (Fed. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 280, 302 (1981). Cir. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# past performance). The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. The Federal Starr is a publication by Starr Wright USA. Regardless, try to avoid getting into an argument with management over factors. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 2 0 obj In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Offenses related to intoxicants. Remain calm, deferential and respectful at all times. 10 Ward v. U.S. 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. The key is credibility. It is important that you really highlightthefactors that are in your favor. 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. Your absence was not approved by your supervisor. 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. This means you should provide objective facts to support your arguments if you can. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Let me give you an example. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. In some instances, you may want to request that management reconsider your case. If this is impractical to do, use Sample 2. 7 Douglas v. Veterans Administration, 5 M.S.P.R. See U.S. 9 Ward v. U.S. 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Relevant? 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. This Quick Start Guide covers the following Key Points: 1. This Factor takes mitigating circumstances into account. 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Conclusions and vague statements do not hold much weight with third parties. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. 502, 508 (1994) (holding that because 31 U.S.C. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. Check with your labor relations advisor. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. For more information, visit WrightUSA.com. Starr Wright USA is the nations leading provider of FEPLI. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Misconduct and Discipline | U.S. Department of the Interior When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. PDF Douglas Factors - AFGE 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. What kind of recovery can I get in my discrimination case? h[M+}LX,? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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. @ 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 . 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 . Agency's table of penalties recognizes this severity in establishing ranges of penalties for Cir. It is important to rebut these issues in a Douglas factor defense. xfg! 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. MSPB decision. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. An official website of the United States government. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. The Douglas factors are also referred to as mitigating factors. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. The national media picked the story up, and it was very detrimental to the agency. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. a. A supervisor cannot just say it; he/she has to prove it. 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Be clear, terse, and apologetic. 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.