A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. This article covers the Douglas Factors. This factor lends itself most to employees arguing for leniency in their case. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army 9 Ward v. U.S. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. 10 Ward v. U.S. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Do you need a table of penalties in OPM? Consistency of the penalty with any applicable agency table of penalties; 8. 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 https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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? Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. See Douglas v. Veterans Administration, 5 M.S.P.R. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Specific evidence/testimony as to why an employee can no longer be trusted is critical. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Consistency of the penalty with any table of penalties an agency may have . To some extent, this is a subjective question. 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. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. Such cases call into question an employees ability to perform their specific job duties with integrity. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. With responsibility comes greater obligation and scrutiny. 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. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. affidavits, performance ratings, SF-50s, letters of commendation) for the record. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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 potential for the employees rehabilitation; 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; and. 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 On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. See Douglas v. Veterans Administration, 5 M.S.P.R. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. This Douglas factor is not one of the more commonly cited Douglas factors. Has an employee been on the job for a long time? One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Agency's table of penalties recognizes this severity in establishing ranges of penalties for The Table provides for more serious penalties for . 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 Douglas factors are also referred to as mitigating factors. Factor: Notoriety and impact 3. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Factor 10: Potential for the employees rehabilitation. Deciding officials should do a Douglas analysis in every case, except when Congress . 1 0 obj Your absence was not approved by your supervisor. 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 . Yes___ No____This factor is one of the more technically difficult to apply. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. They likely held the same job you holdat some point in the past. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. The nature and seriousness of the offense, and its relationship to the employee's . Your absence was not approved by your supervisor. 502, 508 (1994) (holding that because 31 U.S.C. 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. 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. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. If you want you can download and read the fullDouglas v. V.A. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE This factor is generally an afterthought for both management and employees. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Federal agencies may take disciplinary action against employees who engage in misconduct. 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). 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. If you are looking for a representative, note that we are not taking on any cases at this time. 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). They know the stress of a career, they know how life can be difficult. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Cir. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. While each case is different, seeking alternatives may be useful. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Factor: Employee's . Relevant? 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. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Sample: Specification #1. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. Relevant? For instance, did the employee have access to the table of penalties? Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. 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. PDF Committee on Oversight and Government Reform U.S. House of Press Briefing by Press Secretary Karine Jean-Pierre Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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. Managers must apply penalties that are similar to those imposed in like cases. 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. You should review the table to make sure that your discipline is in keeping with this table. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. 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. 0 U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. Additionally, your coworkers have their own assignments. 3 0 obj Also any awards or accolades the employee has would be mitigating in nature. 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. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. Govexec.com . ALL RIGHTS RESERVED. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ For example, an allegation of dishonesty would be treated . 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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? 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. If the person signed for receipt of the letter include that information. In some instances, you may want to request that management reconsider your case. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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. The key is credibility. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Discipline can range from letters of reprimand to short suspensions. (Use sample 1). The first time an employee is Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case.