Plaza America However, the principle of "like penalties for like offenses" does not require perfect consistency. 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). 2012) (internal citations and punctuation omitted). Explanation, if relevant: (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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. The Douglas Factors: Disciplining employees is a fact of life. Sample 1: I have attached the material relied on to support this proposed removal. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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 . Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Your absence was not approved by your supervisor. But do not highlight them either. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. . 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. What if I do not agree with managements analysisof a specific Douglas Factor? 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). It is more often used to attempt to aggravate a disciplinary penalty. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. This article covers the Douglas Factors. The notoriety of the offense or its impact upon the reputation of the agency; . These are known as Douglas factors. 0 Before sharing sensitive information, make sure youre on a federal government site. 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? The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Relevant? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). @ 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 . This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Factor 10: Potential for the employees rehabilitation. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Relevant? Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? posted June 9, 2003. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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. 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 . Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. In many cases, managers act as deciding officials in discipline cases. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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? %PDF-1.5 % Visit WrightUSA.com to start your policy! 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. 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. past performance). The fourth Douglas Factor requires managers to take an employees past performance into account. the case of Douglas vs. 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. If you are low level employee with no supervisory functions this factor should have some mitigating value. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. The final Douglas Factor asks both manager and employee to consider alternative penalties. Berry & Berry PLLC. How does action taken promote the efficiency of the service? If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. A well presented reply to theproposed discipline can lead to substantial mitigation. 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. A deciding official must consider specific factors in determining the reasonableness of the penalty. stream Cir. See Douglas v. Veterans Administration, 5 M.S.P.R. 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). The Douglas Factors should be considered in selecting a penalty. You neither came to work nor did you call in your absence. ALL RIGHTS RESERVED. Private sector cases are drastically different. 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. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. By William N. Rudman . 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios With responsibility comes greater obligation and scrutiny. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. This factor looks to the status of the employee. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. A mitigating factor is one that suggests the discipline be mitigated, or lowered. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 5 Douglas v. Veterans Administration, 5 M.S.P.R. How do you handle these aggravating factors? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n This one is pretty self-explanatory. Relevant? Do you need a table of penalties in OPM? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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 . The national media picked the story up, and it was very detrimental to the agency. Obtain insurance protection for your career today. 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 https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Agency's table of penalties recognizes this severity in establishing ranges of penalties for Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Merit Systems Protection Board still follows today. This factor lends itself most to employees arguing for leniency in their case. If you want you can download and read the fullDouglas v. V.A. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . ^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____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 49 0 obj <> endobj In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Let me give you an example. The reason(s) for this action is (are) specified below. 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. 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. Factor: Employee's . When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Sample: Specification #1. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Factor 7: Consistency of the penalty with any applicable agency table of penalties. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. The Table provides for more serious penalties for . 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Cir. <>>> <> 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Why can such behavior not be tolerated? [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. You need to look at the specifics of your case in light of the twelve factors. The Douglas Factors . 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. Regardless, try to avoid getting into an argument with management over factors. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. endstream endobj startxref Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Only those Douglas Factors relevant to each case need be considered. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. xfg! Your absence was not approved by your supervisor.
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