However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. !%7K81E8zi. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? . 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. 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. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). The reason(s) for this action is (are) specified below. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Many federal agencies maintain tables of penalties that detail discipline options for common offenses. what extent, the "Douglas" factors come into play or how egregious the act was. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Before sharing sensitive information, make sure youre on a federal government site. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. 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. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. 51, 8 (2001). If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. Just knowing the rules, however, cant fully protect you if a case should arise. -What kind of recovery can I get in my discrimination case? The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. Cir. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter An official website of the United States government. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Do you need a table of penalties in OPM? As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Discipline can range from letters of reprimand to short suspensions. The notoriety of the offense or its impact upon the reputation of the agency; . The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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 . See Douglas v. Veterans Administration, 5 M.S.P.R. We need to specifically state why there is erosion of supervisory confidence. Misconduct is also considered more severe if it is done maliciously or for personal gain. Lets say you missed a deadline for an important assignment and management has proposed removal. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Cir. Berry & Berry PLLC. Relevant? 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 nature and seriousness of the offense, and its relationship to the employee's . This Quick Start Guide covers the following Key Points: 1. Private sector cases are drastically different. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Factor 3: The employees past disciplinary record. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. 9 Ward v. U.S. posted June 9, 2003. Can an employee take responsibility, correct their behavior and come back to the job? See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Specific evidence/testimony as to why an employee can no longer be trusted is critical. Douglas Factor Analysis. Be clear, terse, and apologetic. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. 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. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Consistency of the penalty with any table of penalties an agency may have . Managers must take an employees propensity for rehabilitation into account. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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? A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. Did management send out a memo clarifying rules? Sample: Specification #1. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. How the factors will be applied in your disciplinary case depends on the specifics of your case. %PDF-1.6 % 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. 2 0 obj 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 . 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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 . Relevant? Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. 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. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. 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. Your absence was not approved by your supervisor. 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. 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. These terms are used commonly in Douglas Factors application. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Cir. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. { 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Relevant? If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Cir. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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.
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