COPYRIGHT 2023. This Douglas factor is not one of the more commonly cited Douglas factors. 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 . Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. Relevant? The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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. 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. 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; . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 280 (1981). 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? 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. Relevant? This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. PDF Douglas Factors - AFGE Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. They likely held the same job you holdat some point in the past. For example, a law enforcement officer is charged with enforcing laws. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Factor 11: Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. Internal Control Evaluation, page 21 . At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. The site is secure. MSPB decision. Sometimes management may misapply factors, or misconstrue them. Agency's table of penalties recognizes this severity in establishing ranges of penalties for ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Do not deny the existence of bad facts. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 2012) (internal citations and punctuation omitted). Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). The right to answer orally does not include the right to a formal hearing with examination of witnesses. PDF The Douglas Factors - Energy Be clear, terse, and apologetic. PDF Douglas Factors In Depth - Letter Carrier Connection Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. . For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Sample 2: You have the right to review the material relied on to support this proposed removal. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. @ 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 . The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. %%EOF 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. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. %PDF-1.6 % 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. An official website of the United States government. 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. 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. 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. A well presented reply to theproposed discipline can lead to substantial mitigation. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. <> 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. Sample 1: I have attached the material relied on to support this proposed removal. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. 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. 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. 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? Let me give you an example. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. 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. Press Briefing by Press Secretary Karine Jean-Pierre Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 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. Relevant? 280, 290 (1981). The employee's job level and type of employment . Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. The Douglas Factors - United States Office of Personnel Management 0 hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. 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. In many cases, managers act as deciding officials in discipline cases. * Douglas v. Veterans Administration, 5 M.S.P.R. 4 0 obj 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. 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. Factor: Notoriety and impact 3. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished.

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