This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Postal Service, 634 F.3d 1274, 1279 (Fed. This Douglas factor is important and we use this argument in our representation of federal employees. 8.Douglas Factor Analysis. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. However, if you properly argue this factor it can go a long way towards helping your case. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Sample 1: I have attached the material relied on to support this proposed removal. EachDouglas Factor can work for or against an employee depending on their specific case. Reston, VA 20190. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. 2015). disciplinary situations. 280, 302 (1981). accruing multiple instances of discipline can lead you on the fast track to removal from federal service. By William N. Rudman . In addition, actions . Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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. 3 0 obj In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. The Douglas Factors: What You Need to Know - Medium However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Relevant? Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. past performance). The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. 280, 305-06 (1981). Factor: Notoriety and impact 3. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. Plaza America { 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. 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. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Federal government websites often end in .gov or .mil. Relevant? 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. PDF The Douglas Factors - Energy Specification #2. 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). Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Whether you use two charges in this case will depend upon the evidence available. See Douglas v. Veterans Administration, 5 M.S.P.R. what extent, the "Douglas" factors come into play or how egregious the act was. 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. 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. Contact your employee relations advisor to get the information to fill in the blanks. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Let me give you an example. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Offenses related to intoxicants. PDF Committee on Oversight and Government Reform U.S. House of Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. The final Douglas Factor asks both manager and employee to consider alternative penalties. Managers must take an employees propensity for rehabilitation into account. Additionally, your coworkers have their own assignments. This table should be available to you as an employee. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. While each case is different, seeking alternatives may be useful. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. %%EOF The .gov means its official. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. This Factor takes mitigating circumstances into account. 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 . -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. The consistency of the penalty with any applicable agency table of penalties; 8. Cir. The idea is that discipline is meantto be corrective and progressive. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. You will be notified in writing of the final decision. Discipline can range from letters of reprimand to short suspensions. 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; See Douglas v. Veterans Administration, 5 M.S.P.R. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. * Douglas v. Veterans Administration, 5 M.S.P.R. You should review the table to make sure that your discipline is in keeping with this table. PDF Douglas Factors - AFGE In some instances, you may want to request that management reconsider your case. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com 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:#/ 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. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. The employee's job level and type of employment . The key is credibility. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . 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. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Douglas Factor Analysis. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . % Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. 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. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. PDF Douglas Factors In Depth - Letter Carrier Connection We are currently not taking any new cases at this time. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Specific evidence/testimony as to why an employee can no longer be trusted is critical. %PDF-1.5 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. Check with your labor relations advisor. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ The notoriety of the offense or its impact upon the reputation of the agency; . Relevant? This article covers the Douglas Factors. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. PDF The Douglas Factors 2 0 obj 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. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. These are known as Douglas factors. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. PDF The Douglas Factors - United States Office of Personnel Management 9 Ward v. U.S. This is because it puts you on notice of the penalties which is factor #9, below. <> 1999). Only those Douglas Factors relevant to each case need be considered. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The Douglas Factors include: 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. Federal agencies may take disciplinary action against employees who engage in misconduct. Factor: Employee's . These terms are used commonly in Douglas Factors application. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. This Douglas factor is not one of the more commonly cited Douglas factors. What is the table of penalties? - idswater.com 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. PDF DOI Department Manual Table of Offenses and Penalties Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 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. It is important that you really highlightthefactors that are in your favor. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. If you are low level employee with no supervisory functions this factor should have some mitigating value. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 2012) (internal citations and punctuation omitted). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Do they have a positive track record? 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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.

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