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the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Reston, VA 20190. Managers must take an employees propensity for rehabilitation into account. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. What kind of recovery can I get in my discrimination case? It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? This table should be available to you as an employee. 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. %PDF-1.5 % 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. Yes___ No____This factor is one of the more technically difficult to apply. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. The right to answer orally does not include the right to a formal hearing with examination of witnesses. The result will turn on the specifics of your case and the procedural posture as well. 1999). In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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. For instance, did the employee have access to the table of penalties? Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 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. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Deciding officials should do a Douglas analysis in every case, except when Congress . When looking for an attorney make sure they have experience handling federal-sector employment cases. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. They likely held the same job you holdat some point in the past. Determining the Penalty - United States Merit Systems Protection Board This factor looks to the status of the employee. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. hb```f``2c`a`,c`@ r, ^Ma An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Specification #2. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. However, despite the importance of these criteria, many employees arent familiar with them. But they may refuse to. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Did management send out a memo clarifying rules? 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 ? The nature and seriousness of the offense, and its relationship to the employee's . [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Private sector cases are drastically different. Regardless, try to avoid getting into an argument with management over factors. This means you should provide objective facts to support your arguments if you can. 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). Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. removal). * Douglas v. Veterans Administration, 5 M.S.P.R. You should not list a factor unless it is relevant. This has often been considered one of the most important Douglas factors by the MSPB. The Douglas factors 8. The notoriety of the offense or its impact upon the reputation of the agency; . 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. PDF The Douglas Factors - National Federation of Federal Employees Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. @b o $&F Sq70 # 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream !%7K81E8zi. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Factor 3: The employees past disciplinary record. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. In some instances, you may want to request that management reconsider your case. If this is impractical to do, use Sample 2. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. This Factor takes mitigating circumstances into account. 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). On (DATE), you were scheduled to report to work at (TIME). Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. See 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. 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 The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in . Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. What is the table of penalties? - idswater.com We need to specifically state why there is erosion of supervisory confidence. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. Sample 2: You have the right to review the material relied on to support this proposed removal. Has an employee been on the job for a long time? Do you need a table of penalties in OPM? Your job as an employee is to support your position as best as you possibly can. Discipline can range from letters of reprimand to short suspensions. Check with your labor relations advisor. This one is pretty self-explanatory. These terms are used commonly in Douglas Factors application. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees Sample: Specification #1. 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Cir. 280 (1981) These factors are used to explain why the penalty was chosen. 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). 8.Douglas Factor Analysis. 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? 502, 508 (1994) (holding that because 31 U.S.C. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Employees who can appeal an adverse action to the Board have constitutional due process rights. Explanation, if relevant: (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.Relevant? Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Managers and supervisors should properly document the employee misconduct. Before sharing sensitive information, make sure youre on a federal government site. endobj Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. Factor: Employee's . Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. EachDouglas Factor can work for or against an employee depending on their specific case. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Federal government websites often end in .gov or .mil. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Relevant? 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. The reason(s) for this action is (are) specified below. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE Contact your employee relations advisor to get the information to fill in the blanks. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. Additionally, this factor looks at intent. Cir. 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. Your absence was not approved by your supervisor. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! The fourth Douglas Factor requires managers to take an employees past performance into account. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Douglas Factor Mitigation for Federal Employees Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. What if I do not agree with managements analysisof a specific Douglas Factor? PDF Committee on Oversight and Government Reform U.S. House of 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 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. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. 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 . 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. 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. Which is why Federal Employee Professional Liability Insurance is critical. 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. We are currently not taking any new cases at this time. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions.