Also any awards or accolades the employee has would be mitigating in nature. disciplinary situations. 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 . 280, 305-06 (1981). 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. 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. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. ______________________________ __________________ (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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Similar offenses can be used to guide penalty selection. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). . Conclusions and vague statements do not hold much weight with third parties. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. . Specification #2. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. Factor: Employee's . past performance). Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n COPYRIGHT 2023. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Sample 1: I have attached the material relied on to support this proposed removal. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 280 (1981) These factors are used to explain why the penalty was chosen. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. Lets say you missed a deadline for an important assignment and management has proposed removal. 280 (1981) These factors are used to explain why the penalty was chosen. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). While each case is different, seeking alternatives may be useful. 4 0 obj Such cases call into question an employees ability to perform their specific job duties with integrity. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. <>>> Agency's table of penalties recognizes this severity in establishing ranges of penalties for -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. %PDF-1.5 % Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. % B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# A mitigating factor is one that suggests the discipline be mitigated, or lowered. If the person signed for receipt of the letter include that information. 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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. 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. On the surface, many incidents of misconduct may seem to be similar. If this is impractical to do, use Sample 2. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. In some instances, you may want to request that management reconsider your case. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. How does action taken promote the efficiency of the service? The final Douglas Factor asks both manager and employee to consider alternative penalties. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. ALL RIGHTS RESERVED. 3 0 obj On (DATE), you were scheduled to report to work at (TIME). However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. There are certain standards of behavior and conduct expected of employees by our external and internal customers. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. How do you handle these aggravating factors? The Douglas factors 8. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Only those Douglas Factors relevant to each case need be considered. Reston, VA 20190. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? 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. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. Cir. The first time an employee is Any replies submitted will be given full consideration. This Factor takes mitigating circumstances into account. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Employees who can appeal an adverse action to the Board have constitutional due process rights. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Do you need a table of penalties in OPM? 1999). With responsibility comes greater obligation and scrutiny. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. endobj This has often been considered one of the most important Douglas factors by the MSPB. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Additionally, this factor looks at intent. 8.Douglas Factor Analysis. Sometimes management may misapply factors, or misconstrue them. 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Cir. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The fourth Douglas Factor requires managers to take an employees past performance into account. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Cir. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Relevant? For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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 are also referred to as mitigating factors. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? A knowledge of the Douglas Factors is helpful for both federal employees and managers. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 1985). If you have been disciplined before you will face harsher discipline going forward. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Discipline can range from letters of reprimand to short suspensions. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. These terms are used commonly in Douglas Factors application. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. Ultimately, the more credible evidence you can provide to support your position the better. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. a. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Relevant? This Quick Start Guide covers the following Key Points: 1. 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. %PDF-1.5 Cir. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 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. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). If not, include delivery confirmation by the postal or delivery service. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. This Douglas factor is important and we use this argument in our representation of federal employees. Relevant? These factors are the following: 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. @b o $&F Sq70 # An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 502, 508 (1994) (holding that because 31 U.S.C. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Discipline can range from letters of reprimand to short suspensions. Relevant? Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. 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. 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. 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? 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). Relevant? The idea is that discipline is meantto be corrective and progressive. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). You should not list a factor unless it is relevant. 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. 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. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties.
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