yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! However, despite the importance of these criteria, many employees arent familiar with them. To some extent, this is a subjective question. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. This Quick Start Guide covers the following Key Points: 1. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. In some instances, you may want to request that management reconsider your case. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 2015). Many federal agencies maintain tables of penalties that detail discipline options for common offenses. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. The factors may mitigate or aggravate (1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.Relevant? Can someone help me present the Douglas Factors to management? 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Did the employee have access to a handbook that detailed proper procedure and policy? Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. 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. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. The more notorious the offense you commit the more severe the discipline you will face. 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? Cir. If this is impractical to do, use Sample 2. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Private sector cases are drastically different. You need to look at the specifics of your case in light of the twelve factors. 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. 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). Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Management has likely even required you to review the table and sign a form asserting your knowledge of it. . The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. 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. 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. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. %%EOF Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. <> EAP can be reached by calling 1-800-XXX-XXXX. Did management send out a memo clarifying rules? Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream 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. Regardless, try to avoid getting into an argument with management over factors. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. 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 . Any personal issues going on around the time of the misconduct should be brought to the attention of management. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. A supervisor cannot just say it; he/she has to prove it. 0 Cir. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Why can such behavior not be tolerated? 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. Any replies submitted will be given full consideration. However, if you properly argue this factor it can go a long way towards helping your 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. 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 . the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. 7 Douglas v. Veterans Administration, 5 M.S.P.R. These factors are the following: 1. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? %PDF-1.6 % The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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 3 Douglas v. Veterans Administration, 5 M.S.P.R. For example, an allegation of dishonesty would be treated . Misconduct is also considered more severe if it is done maliciously or for personal gain. The final Douglas Factor asks both manager and employee to consider alternative penalties. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. It is important to rebut these issues in a Douglas factor defense. removal). This factor looks to the status of the employee. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Discipline can range from letters of reprimand to short suspensions. PDF The Douglas Factors - United States Office of Personnel Management Do not deny the existence of bad facts. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. WA Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. A Table of Penalties is a list of . hb```f``2c`a`,c`@ r, ^Ma Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Douglas Factors for Federal Employees - berrylegal 280, 302 (1981). h[M+}LX,? Factor: Consistency with table of penalties 2. Cir. 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). 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. endstream endobj startxref <>>> Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. The Douglas Factors: Disciplining employees is a fact of life. 8.Douglas Factor Analysis. 51, 8 (2001). We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. A well presented reply to theproposed discipline can lead to substantial mitigation. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 11700 Plaza America Drive PDF Committee on Oversight and Government Reform U.S. House of The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . PDF Douglas Factors In Depth - Branch 38 NALC 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. Obtain insurance protection for your career today. past performance). 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. (Use sample 1). 280 (1981) These factors are used to explain why the penalty was chosen. Plaza America See Douglas v. Veterans Administration, 5 M.S.P.R. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 2278 0 obj <>stream 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. While each case is different, seeking alternatives may be useful. Specific evidence/testimony as to why an employee can no longer be trusted is critical. With responsibility comes greater obligation and scrutiny.