Cir. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. a. Govexec.com . With responsibility comes greater obligation and scrutiny. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Before sharing sensitive information, make sure youre on a federal government site. PDF Committee on Oversight and Government Reform U.S. House of past performance). 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). The Douglas Factors should be considered in selecting a penalty. They know the stress of a career, they know how life can be difficult. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Agency's table of penalties recognizes this severity in establishing ranges of penalties for PDF Committee on Oversight and Government Reform U.S. House of See U.S. A well presented reply to theproposed discipline can lead to substantial mitigation. The more notorious the offense you commit the more severe the discipline you will face. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. 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). Table Of Penalties Douglas Factors - aaaawintvcapdavid.link The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 1985). 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. 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Relevant? 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. Cir. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Why can such behavior not be tolerated? Note. This Factor takes mitigating circumstances into account. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? PDF Douglas Factors In Depth - Letter Carrier Connection DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com 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. Factor 3: The employees past disciplinary record. Visit WrightUSA.com to start your policy! In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. Douglas Factor Analysis. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties This table should be available to you as an employee. Did management send out a memo clarifying rules? Any personal issues going on around the time of the misconduct should be brought to the attention of management. This Douglas factor is not one of the more commonly cited Douglas factors. !%7K81E8zi. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Managers and supervisors should properly document the employee misconduct. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Misconduct is also considered more severe if it is done maliciously or for personal gain. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 7 Douglas v. Veterans Administration, 5 M.S.P.R. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. How do you handle these aggravating factors? 10 Ward v. U.S. Relevant? Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Cir. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. In theory, discipline should be both corrective and progressive. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . WA Postal Service, 634 F.3d 1274, 1279 (Fed. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees Managers must apply penalties that are similar to those imposed in like cases. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. 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 ? 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. Do you need a table of penalties in OPM? The Douglas Factors . Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. <> This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. <>>> 280 (1981). NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. If the person signed for receipt of the letter include that information. Which is why Federal Employee Professional Liability Insurance is critical. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. disciplinary situations. Sample: Specification #1. Obtain insurance protection for your career today. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Postal Service, 634 F.3d 1274, 1282 (Fed. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. 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. Cir. Contact your employee relations advisor to get the information to fill in the blanks. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Douglas Factor Mitigation for Federal Employees 1 0 obj Discipline can range from letters of reprimand to short suspensions. We are currently not taking any new cases at this time. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. Plaza America Negligent or accidental incidents will be viewed more favorably than intentional acts. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Weigh Douglas Factors in disciplinary cases - Ask The Lawyer