See Douglas v. Veterans Administration, 5 M.S.P.R. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. An official website of the United States government. On (DATE), you were scheduled to report to work at (TIME). When looking for an attorney make sure they have experience handling federal-sector employment cases. Remain calm, deferential and respectful at all times. 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. 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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Employees who can appeal an adverse action to the Board have constitutional due process rights. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. You neither came to work nor did you call in your absence. 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. %%EOF removal). This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Be clear, terse, and apologetic. 1999). An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 11700 Plaza America Drive 2278 0 obj <>stream Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. The Douglas Factors . 3 0 obj Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. By William N. Rudman . Visit WrightUSA.com to start your policy! to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Ultimately, managers are people too. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. The site is secure. Explanation, if relevant: (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.Relevant? How do you handle these aggravating factors? Factor 7: Consistency of the penalty with any applicable agency table of penalties. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 72 0 obj <>stream Reston, VA 20190. 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. This table should be available to you as an employee. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Govexec.com . We need to specifically state why there is erosion of supervisory confidence. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Any replies submitted will be given full consideration. These factors are: 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. 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. Similar offenses can be used to guide penalty selection. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The Douglas Factors: Disciplining employees is a fact of life. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Managers and supervisors should properly document the employee misconduct. Management has likely even required you to review the table and sign a form asserting your knowledge of it. This Factor takes mitigating circumstances into account. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. This Douglas factor is important and we use this argument in our representation of federal employees. If you want you can download and read the fullDouglas v. V.A. 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. This Douglas factor is not one of the more commonly cited Douglas factors. You should review the table to make sure that your discipline is in keeping with this table. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. Sometimes management may misapply factors, or misconstrue them. 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 Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 49 0 obj <> endobj In theory, discipline should be both corrective and progressive. 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. 280, 305-06 (1981). If not, include delivery confirmation by the postal or delivery service. Such cases call into question an employees ability to perform their specific job duties with integrity. It is important to rebut these issues in a Douglas factor defense. 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. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 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. 51, 8 (2001). Cir. %PDF-1.6 % See U.S. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 5 Douglas v. Veterans Administration, 5 M.S.P.R. This means you should provide objective facts to support your arguments if you can. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Conclusions and vague statements do not hold much weight with third parties. 2015). 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 . 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 . The reason(s) for this action is (are) specified below. Did management send out a memo clarifying rules? (Use sample 1). @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . 280 (1981) These factors are used to explain why the penalty was chosen. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. It is important that you really highlightthefactors that are in your favor. Also any awards or accolades the employee has would be mitigating in nature. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. The Douglas Factors . Relevant? Ultimately, the more credible evidence you can provide to support your position the better. It is more often used to attempt to aggravate a disciplinary penalty. A supervisor cannot just say it; he/she has to prove it. i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. The consistency of the penalty with any applicable agency table of penalties; 8. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Offenses related to intoxicants. 1999). You should not list a factor unless it is relevant. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 2 0 obj 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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; . 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. hbbd``b`:$ Hd V$D? U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Cir. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Federal government websites often end in .gov or .mil. Plaza America 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. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. On (DATE), you were scheduled to report to work at (TIME). Cir. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. However, despite the importance of these criteria, many employees arent familiar with them. The key is credibility. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. These terms are used commonly in Douglas Factors application. What is effect of the misconduct charged? Additionally, the Board cannot review the reasonableness of a penalty that is set by law. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Can an employee take responsibility, correct their behavior and come back to the job? Has an employee been on the job for a long time? 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. On the surface, many incidents of misconduct may seem to be similar. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. This one is pretty self-explanatory. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R.
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