Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Determining the Penalty - United States Merit Systems Protection Board stream the case of Douglas vs. Veterans Administration, 5 M.S.P.R. The Federal Starr is a publication by Starr Wright USA. Cir. 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. Douglas Factors - Postal Reporter For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. That translates into harsher penalties for repeat offenders. 51, 8 (2001). In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Govexec.com . We are currently not taking any new cases at this time. what extent, the "Douglas" factors come into play or how egregious the act was. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 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. They know the stress of a career, they know how life can be difficult. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. In theory, discipline should be both corrective and progressive. These terms are used commonly in Douglas Factors application. 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. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 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. <> After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Consistency of the penalty with any table of penalties an agency may have . The Douglas Factors . 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). PDF The Douglas Factors - National Federation of Federal Employees What kind of recovery can I get in my discrimination case? Did management send out a memo clarifying rules? However, if you properly argue this factor it can go a long way towards helping your case. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 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. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. To some extent, this is a subjective question. PDF DOI Department Manual Table of Offenses and Penalties Berry & Berry PLLC. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army The Douglas factors are: (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? For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Factor 3: The employees past disciplinary record. PDF Douglas Factors In Depth - Branch 38 NALC Do you need a table of penalties in OPM? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Factor: Employee's . Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. COPYRIGHT 2023. Has an employee been on the job for a long time? Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. This Douglas factor is not one of the more commonly cited Douglas factors. Managers must apply penalties that are similar to those imposed in like cases. Any personal issues going on around the time of the misconduct should be brought to the attention of management. If not, include delivery confirmation by the postal or delivery service. However, despite the importance of these criteria, many employees arent familiar with them. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. 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 Quick Start Guide covers the following Key Points: 1. 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. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). past performance). 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. Sample 2: You have the right to review the material relied on to support this proposed removal. Did the employee have access to a handbook that detailed proper procedure and policy? These 12 factors play a key role in the outcome of federal employee discipline cases. You should not list a factor unless it is relevant. How the factors will be applied in your disciplinary case depends on the specifics of your case. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Reston, VA 20190. 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). Cir. 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. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. @ 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 . Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Cir. 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; . Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Merit Systems Protection Board still follows today. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Misconduct and Discipline | U.S. Department of the Interior As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. If you have been disciplined before you will face harsher discipline going forward. hbbd``b`:$ Hd V$D? Before sharing sensitive information, make sure youre on a federal government site. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Discipline can range from letters of reprimand to short suspensions. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. * Douglas v. Veterans Administration, 5 M.S.P.R. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. The first time an employee is 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. Press Briefing by Press Secretary Karine Jean-Pierre Starr Wright USA is the nations leading provider of FEPLI. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. This table should be available to you as an employee. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. Consistency of the penalty with any applicable agency table of penalties; 8. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. PDF The Douglas Factors By William N. Rudman . Douglas Factor Analysis. 10 Ward v. U.S. The Douglas Factors . For instance, did the employee have access to the table of penalties? Additionally, this factor looks at intent. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ This factor looks to the status of the employee. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). removal). Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. hb```f``2c`a`,c`@ r, ^Ma 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. If you list a factor you must explain why it is relevant. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Any replies submitted will be given full consideration. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. The Table provides for more serious penalties for . Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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 . EachDouglas Factor can work for or against an employee depending on their specific case. 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. 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. MSPB decision.