The consistency of the penalty with any applicable agency table of penalties; 8. If you want you can download and read the fullDouglas v. V.A. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> The final Douglas Factor asks both manager and employee to consider alternative penalties. 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. You neither came to work nor did you call in your absence. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 51, 8 (2001). Postal Service, 634 F.3d 1274, 1282 (Fed. Managers must apply penalties that are similar to those imposed in like cases. The nature and seriousness of the offense, and its relationship to the employee's . When looking for an attorney make sure they have experience handling federal-sector employment cases. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. Cir. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. 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. Cir. What every federal employee facing discipline should be familiar with: The Douglas Factors. Also any awards or accolades the employee has would be mitigating in nature. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. For example, a law enforcement officer is charged with enforcing laws. %PDF-1.5 % 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. hbbd``b`:$ Hd V$D? Your absence was not approved by your supervisor. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . In some instances, you may want to request that management reconsider your case. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. 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. 2012) (internal citations and punctuation omitted). 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; past performance). Relevant? If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 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. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. 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. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). This article covers the Douglas Factors. Berry & Berry PLLC. For more information, visit WrightUSA.com. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. You need to look at the specifics of your case in light of the twelve factors. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Relevant? 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 . Cir. !%7K81E8zi. The Table provides for more serious penalties for . Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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 A supervisor cannot just say it; he/she has to prove it. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in . We need to specifically state why there is erosion of supervisory confidence. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. Douglas Factor Analysis. Cir. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Specific evidence/testimony as to why an employee can no longer be trusted is critical. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. By William N. Rudman . Suite 305 ^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. 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. Factor: Nature and seriousness 9. 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). 1985). Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Did the employee have access to a handbook that detailed proper procedure and policy? The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. Similar offenses can be used to guide penalty selection. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? The key is credibility. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. h[M+}LX,? Cir. On (DATE), you were scheduled to report to work at (TIME). Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 3 0 obj 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 4 0 obj @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. What is effect of the misconduct charged? 9 Ward v. U.S. That translates into harsher penalties for repeat offenders. Regardless, try to avoid getting into an argument with management over factors. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. A Table of Penalties is a list of . 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). 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). An overlooked factabout the cost of hiring an attorney is that they can actually save you money. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Sometimes management may misapply factors, or misconstrue them. This means you should provide objective facts to support your arguments if you can. Be clear, terse, and apologetic. Starr Wright USA is the nations leading provider of FEPLI. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Any replies submitted will be given full consideration. 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. Before sharing sensitive information, make sure youre on a federal government site. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Visit WrightUSA.com to start your policy! Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? These terms are used commonly in Douglas Factors application. 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. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Did management send out a memo clarifying rules? For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Offenses related to intoxicants. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. We are currently not taking any new cases at this time. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Agency's table of penalties recognizes this severity in establishing ranges of penalties for Agency's table of penalties recognizes this severity in establishing ranges of penalties for If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. 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. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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 first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. 49 0 obj <> endobj 5 Douglas v. Veterans Administration, 5 M.S.P.R. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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). Other times it may mean providing some evidence to management to further support your position. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. The employee's job level and type of employment . This one is pretty self-explanatory. This factor lends itself most to employees arguing for leniency in their case. On (DATE), you were scheduled to report to work at (TIME). ALL RIGHTS RESERVED. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. past performance). 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. This Douglas factor is important and we use this argument in our representation of federal employees. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Only relevant factors must be included. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). <>>> Your job as an employee is to support your position as best as you possibly can. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. But do not highlight them either. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz This Quick Start Guide covers the following Key Points: 1. endobj This has often been considered one of the most important Douglas factors by the MSPB. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. On the surface, many incidents of misconduct may seem to be similar. How does action taken promote the efficiency of the service? Managers must take an employees propensity for rehabilitation into account. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. 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 But they may refuse to. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. This factor looks to the status of the employee. The Douglas Factors . Ultimately, the more credible evidence you can provide to support your position the better. Contact your employee relations advisor to get the information to fill in the blanks. Relevant? You should not list a factor unless it is relevant. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Cir. For example, an allegation of dishonesty would be treated . 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 . The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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. 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. Factor 10: Potential for the employees rehabilitation. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Negligent or accidental incidents will be viewed more favorably than intentional acts. See Douglas v. Veterans Administration, 5 M.S.P.R. Discipline can range from letters of reprimand to short suspensions. %PDF-1.6 % 1 0 obj endstream endobj startxref This factor is generally an afterthought for both management and employees. * Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Can someone help me present the Douglas Factors to management? Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. See 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?
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