EachDouglas Factor can work for or against an employee depending on their specific case. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Press Briefing by Press Secretary Karine Jean-Pierre This Factor takes mitigating circumstances into account. Can an employee take responsibility, correct their behavior and come back to the job? Discipline can range from letters of reprimand to short suspensions. For more information, visit WrightUSA.com. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. 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? MSPB decision. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. These factors are: 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. If the person signed for receipt of the letter include that information. Only those Douglas Factors relevant to each case need be considered. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. You will be notified in writing of the final decision. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Factor: Nature and seriousness 9. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. In many cases, managers act as deciding officials in discipline cases. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The employee's job level and type of employment . Factor 7: Consistency of the penalty with any applicable agency table of penalties. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees 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. This factor looks to the status of the employee. 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. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? The fourth Douglas Factor requires managers to take an employees past performance into account. The result will turn on the specifics of your case and the procedural posture as well. Plaza America In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Any replies submitted will be given full consideration. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). What is the table of penalties? - idswater.com Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ Also any awards or accolades the employee has would be mitigating in nature. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 2012) (internal citations and punctuation omitted). See Douglas v. Veterans Administration, 5 M.S.P.R. what extent, the "Douglas" factors come into play or how egregious the act was. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. See U.S. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Has an employee been on the job for a long time? The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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). NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. %PDF-1.5 % Lets say you missed a deadline for an important assignment and management has proposed removal. ______________________________ __________________ (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. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. PDF Douglas Factors In Depth - Letter Carrier Connection 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. <>/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>> For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). % PDF The Douglas Factors - Energy 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. PDF The Douglas Factors This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Did management send out a memo clarifying rules? 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 . 1 0 obj 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Misconduct is also considered more severe if it is done maliciously or for personal gain. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. The nature and seriousness of the offense, and its relation to the employees 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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 potential for the employees rehabilitation; 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; and. Sample 2: You have the right to review the material relied on to support this proposed removal. 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. Cir. 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. Yes___ No____This factor is one of the more technically difficult to apply. Factor 1: The nature and seriousness of the offense, and its relation to the employees 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. 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. 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. Douglas Factors In Depth The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining . Opinions expressed in this article are for informational purposes only and do not constitute legal advice. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal.

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