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. PDF Chapter 4. Hud Table of Offenses and Penalties However, despite the importance of these criteria, many employees arent familiar with them. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. This factor lends itself most to employees arguing for leniency in their case. How do you handle these aggravating factors? 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. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& If you have been disciplined before you will face harsher discipline going forward. endobj 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. <>>> Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. This Douglas factor is important and we use this argument in our representation of federal employees. The Douglas Factors: Disciplining employees is a fact of life. 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. Regardless, try to avoid getting into an argument with management over factors. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? The notoriety of the offense or its impact upon the reputation of the agency; . 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). We need to specifically state why there is erosion of supervisory confidence. 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. 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; An overlooked factabout the cost of hiring an attorney is that they can actually save you money. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. On the surface, many incidents of misconduct may seem to be similar. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Private sector cases are drastically different. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. Specification #2. It is more often used to attempt to aggravate a disciplinary penalty. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. However, if you properly argue this factor it can go a long way towards helping your case. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. On (DATE), you were scheduled to report to work at (TIME). 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. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Douglas Factors - Postal Reporter Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. By William N. Rudman . Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. 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. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. 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. Misconduct and Discipline | U.S. Department of the Interior The final Douglas Factor asks both manager and employee to consider alternative penalties. Conclusions and vague statements do not hold much weight with third parties. On (DATE), you were scheduled to report to work at (TIME). hb```f``2c`a`,c`@ r, ^Ma 1999). Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. %PDF-1.6 % 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. Managers and supervisors should properly document the employee 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. PDF The Douglas Factors - United States Office of Personnel Management Sample 1: I have attached the material relied on to support this proposed removal. . But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Sample 2: You have the right to review the material relied on to support this proposed removal. 1999). Any personal issues going on around the time of the misconduct should be brought to the attention of management. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. The reason(s) for this action is (are) specified below. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. posted June 9, 2003. How does action taken promote the efficiency of the service? The Douglas Factors . 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. 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). PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. A deciding official must consider specific factors in determining the reasonableness of the penalty. Consistency of the penalty with any applicable agency table of penalties; 8. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Ultimately, managers are people too. 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 Whether you use two charges in this case will depend upon the evidence available. Don't force misconduct into a listed offense unless it accurately fits. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . In addition, actions . ALL RIGHTS RESERVED. 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. Federal government websites often end in .gov or .mil. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . There are certain standards of behavior and conduct expected of employees by our external and internal customers. Agency's table of penalties recognizes this severity in establishing ranges of penalties for See U.S. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. This Quick Start Guide covers the following Key Points: 1. Table Of Penalties Douglas Factors Sample: Specification #1. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. With responsibility comes greater obligation and scrutiny. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). ^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-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Has an employee been on the job for a long time? Internal Control Evaluation, page 21 . What is effect of the misconduct charged? These are known as Douglas factors. Discipline can range from letters of reprimand to short suspensions. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. If you are looking for a representative, note that we are not taking on any cases at this time. Did management send out a memo clarifying rules? A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. The fourth Douglas Factor requires managers to take an employees past performance into account. The more notorious the offense you commit the more severe the discipline you will face. 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 . PDF Committee on Oversight and Government Reform U.S. House of 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. removal). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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, a law enforcement officer is charged with enforcing laws. You neither came to work nor did you call in your absence. If not, include delivery confirmation by the postal or delivery service. 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. 8.Douglas Factor Analysis. You should not list a factor unless it is relevant. The site is secure. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. What if I do not agree with managements analysisof a specific Douglas Factor? Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. The result will turn on the specifics of your case and the procedural posture as well. <> Offenses related to intoxicants. @b o $&F Sq70 # In theory, discipline should be both corrective and progressive. Relevant? 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.

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