See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. 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. Similar offenses can be used to guide penalty selection. The Douglas Factors . 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. MSPB decision. You need to look at the specifics of your case in light of the twelve factors. 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. 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. With responsibility comes greater obligation and scrutiny. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. They know the stress of a career, they know how life can be difficult. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Starr Wright USA is the nations leading provider of FEPLI. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. * Douglas v. Veterans Administration, 5 M.S.P.R. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. In many cases, managers act as deciding officials in discipline cases. Whether you use two charges in this case will depend upon the evidence available. 280 (1981) These factors are used to explain why the penalty was chosen. PDF Committee on Oversight and Government Reform U.S. House of PDF Douglas Factors In Depth - Letter Carrier Connection These factors are the following: 1. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. Can someone help me present the Douglas Factors to management? Relevant? Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). A Table of Penalties is a list of . This is because it puts you on notice of the penalties which is factor #9, below. 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. 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. If not, include delivery confirmation by the postal or delivery service. 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. PDF The Douglas Factors - National Federation of Federal Employees These are known as Douglas factors. 0 These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Specification #2. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Be clear, terse, and apologetic. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). If you list a factor you must explain why it is relevant. The .gov means its official. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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:#/ @ 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 . This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. PDF The Douglas Factors A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. 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. endobj 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. COPYRIGHT 2023. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. This one is pretty self-explanatory. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. We are currently not taking any new cases at this time. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). If you are looking for a representative, note that we are not taking on any cases at this time. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal 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. Cir. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream -What kind of recovery can I get in my discrimination case? 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. Cir. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Any replies submitted will be given full consideration. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. 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. It is important to rebut these issues in a Douglas factor defense. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . EAP can be reached by calling 1-800-XXX-XXXX. 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. EachDouglas Factor can work for or against an employee depending on their specific case. Factor: Notoriety and impact 3. what extent, the "Douglas" factors come into play or how egregious the act was. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? The Douglas Factors: What You Need to Know - Medium This Factor takes mitigating circumstances into account. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. This factor lends itself most to employees arguing for leniency in their case. a. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. The more notorious the offense you commit the more severe the discipline you will face. Sometimes management may misapply factors, or misconstrue them. 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. Merit Systems Protection Board still follows today. 2015). It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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). PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees 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 . 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 . However, despite the importance of these criteria, many employees arent familiar with them. Relevant? An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Don't force misconduct into a listed offense unless it accurately fits. The key is credibility. 2012) (internal citations and punctuation omitted). { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. 9 Ward v. U.S. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 49 0 obj <> endobj 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. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The final Douglas Factor asks both manager and employee to consider alternative penalties. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. Discipline can range from letters of reprimand to short suspensions. What every federal employee facing discipline should be familiar with: The Douglas Factors. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. 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 ? Internal Control Evaluation, page 21 . Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. For example, an allegation of dishonesty would be treated . The Douglas Factors - Melville Johnson 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 Only those Douglas Factors relevant to each case need be considered. 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. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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. 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. 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Factor: Consistency with table of penalties 2. %%EOF Also any awards or accolades the employee has would be mitigating in nature. 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. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. They likely held the same job you holdat some point in the past. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . endstream endobj startxref Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . See U.S. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001).