A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Factor: Consistency with table of penalties 2. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. hbbd``b`:$ Hd V$D? This factor lends itself most to employees arguing for leniency in their case. Just knowing the rules, however, cant fully protect you if a case should arise. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. See Douglas v. Veterans Administration, 5 M.S.P.R. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 1985). Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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 ? 280 (1981). Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. This Quick Start Guide covers the following Key Points: 1. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. ______________________________ __________________ (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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. Other times it may mean providing some evidence to management to further support your position. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 280 (1981) These factors are used to explain why the penalty was chosen. The consistency of the penalty with any applicable agency table of penalties; 8. But they may refuse to. Factor 7: Consistency of the penalty with any applicable agency table of penalties. The employee's job level and type of employment . 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r However, the principle of "like penalties for like offenses" does not require perfect consistency. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. On (DATE), you were scheduled to report to work at (TIME). 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n These are known as Douglas factors. Ultimately, the more credible evidence you can provide to support your position the better. If you have been disciplined before you will face harsher discipline going forward. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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? If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. past performance). Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. You neither came to work nor did you call in your absence. You need to look at the specifics of your case in light of the twelve factors. endobj 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. 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. 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. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . This table should be available to you as an employee. 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. The notoriety of the offense or its impact upon the reputation of the agency; . Relevant? 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. 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. 10 Ward v. U.S. Merit Systems Protection Board still follows today. <>>> The .gov means its official. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 4 0 obj A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 8.Douglas Factor Analysis. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Your job as an employee is to support your position as best as you possibly can. 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. endobj 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. Cir. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). 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. posted June 9, 2003. In addition, actions . As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 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. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. If not, include delivery confirmation by the postal or delivery service. 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.
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