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A deciding official must consider specific factors in determining the reasonableness of the penalty. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). The result will turn on the specifics of your case and the procedural posture as well. 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Sample 2: You have the right to review the material relied on to support this proposed removal. 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. what extent, the "Douglas" factors come into play or how egregious the act was. ALL RIGHTS RESERVED. Such cases call into question an employees ability to perform their specific job duties with integrity. Merit Systems Protection Board still follows today. 9 Ward v. U.S. If you want you can download and read the fullDouglas v. V.A. 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. 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. 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. 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. (Use sample 1). . 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. In many cases, managers act as deciding officials in discipline cases. Factor 3: The employees past disciplinary record. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Cir. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Consistency of the penalty with any table of penalties an agency may have . 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. The factors may mitigate or aggravate (1) 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.Relevant? 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. 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 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 . 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 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. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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. Relevant? Cir. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). affidavits, performance ratings, SF-50s, letters of commendation) for the record. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. However, despite the importance of these criteria, many employees arent familiar with them. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Berry & Berry PLLC. 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. How do you handle these aggravating factors? 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Note. The final Douglas Factor asks both manager and employee to consider alternative penalties. The employee's job level and type of employment . 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. Don't force misconduct into a listed offense unless it accurately fits. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. stream 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. Cir. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. past performance). 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. The Douglas Factors should be considered in selecting a penalty. 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. disciplinary situations. 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. 8.Douglas Factor Analysis. 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. %PDF-1.6 % At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. The reason(s) for this action is (are) specified below. The consistency of the penalty with any applicable agency table of penalties; 8. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Sample: Specification #1. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. These terms are used commonly in Douglas Factors application. 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. The site is secure. endstream endobj startxref It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. It is more often used to attempt to aggravate a disciplinary penalty. This factor is generally an afterthought for both management and employees. Managers must take an employees propensity for rehabilitation into account. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Managers and supervisors should properly document the employee misconduct. Your absence was not approved by your supervisor. Cir. 1999). Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. A supervisor cannot just say it; he/she has to prove it. Factor: Nature and seriousness 9. 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. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. 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. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. WA You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. Offenses related to intoxicants. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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). They likely held the same job you holdat some point in the past. 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. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 280, 290 (1981). past performance). 1985). You should review the table to make sure that your discipline is in keeping with this table. Do not deny the existence of bad facts. a. That translates into harsher penalties for repeat offenders. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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 Douglas Factors . When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 280 (1981). This means you should provide objective facts to support your arguments if you can. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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.