This factor looks to the status of the employee. 5 Douglas v. Veterans Administration, 5 M.S.P.R. If you list a factor you must explain why it is relevant. 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. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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 . Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. Cir. 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. 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. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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). Do not deny the existence of bad facts. <>/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>> generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios It is important to rebut these issues in a Douglas factor defense. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). posted June 9, 2003. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Can someone help me present the Douglas Factors to management? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. h[M+}LX,? These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. With responsibility comes greater obligation and scrutiny. This Factor takes mitigating circumstances into account. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Postal Service, 634 F.3d 1274, 1279 (Fed. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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 one is pretty self-explanatory. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? % 9 Ward v. U.S. 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 . The Douglas Factors explained, the keys to a discipline case - Ivancie Law 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. what extent, the "Douglas" factors come into play or how egregious the act was. Ultimately, the more credible evidence you can provide to support your position the better. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The employee's job level and type of employment . 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. 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; You need to look at the specifics of your case in light of the twelve factors. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( endobj 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. Discipline can range from letters of reprimand to short suspensions. Obtain insurance protection for your career today. Table Of Penalties Douglas Factors This Douglas factor is not one of the more commonly cited Douglas factors. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. PDF DOI Department Manual Table of Offenses and Penalties The result will turn on the specifics of your case and the procedural posture as well. But they may refuse to. 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. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. 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 Govexec.com . <> A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Such cases call into question an employees ability to perform their specific job duties with integrity. 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. 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. Misconduct is also considered more severe if it is done maliciously or for personal gain. 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. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Did management send out a memo clarifying rules? The notoriety of the offense or its impact upon the reputation of the agency; . ALL RIGHTS RESERVED. Sometimes management may misapply factors, or misconstrue them. Explanation, if relevant: (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.Relevant? Factor: Notoriety and impact 3. In theory, discipline should be both corrective and progressive. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . On (DATE), you were scheduled to report to work at (TIME). Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Federal agencies may take disciplinary action against employees who engage in misconduct. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. <> Why can such behavior not be tolerated? See Douglas v. Veterans Administration, 5 M.S.P.R. These are known as Douglas factors. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. ^K[i>P+hvSbfpNK"ly(O$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. Which is why Federal Employee Professional Liability Insurance is critical. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Your absence was not approved by your supervisor. 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. 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. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Plaza America rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. A supervisor cannot just say it; he/she has to prove it. 4 0 obj However, if you properly argue this factor it can go a long way towards helping your case. This is because it puts you on notice of the penalties which is factor #9, below. 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. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. If the person signed for receipt of the letter include that information. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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? MSPB decision. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. %PDF-1.5 A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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. 2 0 obj 11700 Plaza America Drive 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 . A mitigating factor is one that suggests the discipline be mitigated, or lowered. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. These factors are: 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. Reston, VA 20190. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. 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. 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. Sample 1: I have attached the material relied on to support this proposed removal. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? What is the table of penalties? - idswater.com Relevant? Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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 . 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. PDF Douglas Factors In Depth - Branch 38 NALC The national media picked the story up, and it was very detrimental to the agency. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. The consistency of the penalty with any applicable agency table of penalties; 8. Did the employee have access to a handbook that detailed proper procedure and policy? 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. COPYRIGHT 2023. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. Douglas Factors for Federal Employees - berrylegal Relevant? 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. 10 Ward v. U.S. How the factors will be applied in your disciplinary case depends on the specifics of your case. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. You should not list a factor unless it is relevant. The Table provides for more serious penalties for . Managers and supervisors should properly document the employee misconduct. 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. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Before sharing sensitive information, make sure youre on a federal government site. What is effect of the misconduct charged? Employees who can appeal an adverse action to the Board have constitutional due process rights. If you are looking for a representative, note that we are not taking on any cases at this time. 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. If this is impractical to do, use Sample 2. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. Let me give you an example. Conclusions and vague statements do not hold much weight with third parties. Do they have a positive track record? Managers must apply penalties that are similar to those imposed in like cases. 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). PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties