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. 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. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). PDF Douglas Factors In Depth - Branch 38 NALC Ultimately, the more credible evidence you can provide to support your position the better. 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 . This factor looks to the status of the employee. 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. If you are looking for a representative, note that we are not taking on any cases at this time. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Cir. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. <> For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. Visit WrightUSA.com to start your policy! Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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 The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. In many cases, managers act as deciding officials in discipline cases. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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 . PDF The Douglas Factors - Energy 5 Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) These factors are used to explain why the penalty was chosen. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Agency's table of penalties recognizes this severity in establishing ranges of penalties for Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 4 0 obj The final Douglas Factor asks both manager and employee to consider alternative penalties. EAP can be reached by calling 1-800-XXX-XXXX. 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. The site is secure. Don't force misconduct into a listed offense unless it accurately fits. The national media picked the story up, and it was very detrimental to the agency. 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. If you want you can download and read the fullDouglas v. V.A. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. Your absence was not approved by your supervisor. 51, 8 (2001). Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 1999). 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:#/ For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The Douglas Factors - Melville Johnson If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. This article covers the Douglas Factors. 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. -What kind of recovery can I get in my discrimination case? . 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. What kind of recovery can I get in my discrimination case? For example, an allegation of dishonesty would be treated . 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . If this is impractical to do, use Sample 2. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. Any personal issues going on around the time of the misconduct should be brought to the attention of management. 10 Ward v. U.S. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. endstream endobj startxref stream These 12 factors play a key role in the outcome of federal employee discipline cases. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Do they have a positive track record? We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. Cir. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. The more notorious the offense you commit the more severe the discipline you will face. 0 Managers must apply penalties that are similar to those imposed in like cases. 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). It is important that you really highlightthefactors that are in your favor. 49 0 obj <> endobj 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Which is why Federal Employee Professional Liability Insurance is critical. The notoriety of the offense or its impact upon the reputation of the agency; . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ PDF DOI Department Manual Table of Offenses and Penalties Cir. 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. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. 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). Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. That translates into harsher penalties for repeat offenders. Sample: Specification #1. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. PDF Chapter 4. Hud Table of Offenses and Penalties 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Do you need a table of penalties in OPM? 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, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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 . Conclusions and vague statements do not hold much weight with third parties. What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. Employees who can appeal an adverse action to the Board have constitutional due process rights. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. 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. On (DATE), you were scheduled to report to work at (TIME). A supervisor cannot just say it; he/she has to prove it. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? 280, 290 (1981). PDF 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. 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 . If you are low level employee with no supervisory functions this factor should have some mitigating value. You will be notified in writing of the final decision. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. Factor: Notoriety and impact 3. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. a. 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. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Consistency of the penalty with any applicable agency table of penalties; 8. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. Cir. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The nature and seriousness of the offense, and its relationship to the employee's . 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. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Similar offenses can be used to guide penalty selection. Can someone help me present the Douglas Factors to management?
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