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.
The consistency of the penalty with any applicable agency table of penalties; 8. 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. 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. 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. This table should be available to you as an employee. PDF The Douglas Factors - Energy Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Contact your employee relations advisor to get the information to fill in the blanks. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Yes___
No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. xfg! As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. @b o $&F Sq70 #
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. The Douglas Factors . Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Note. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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. 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. 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. 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. Sample:
If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Heres what anyone who works for the federal government needs to know about the Douglas Factors. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. what extent, the "Douglas" factors come into play or how egregious the act was. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). the case of Douglas vs. Veterans Administration, 5 M.S.P.R. @ Q W % & ' ( ) * P X }ppfU h
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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 . A mitigating factor is one that suggests the discipline be mitigated, or lowered. 1999). We are currently not taking any new cases at this time. EachDouglas Factor can work for or against an employee depending on their specific case. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. Cir. The Table provides for more serious penalties for . PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties If you want you can download and read the fullDouglas v. V.A. Managers and supervisors should properly document the employee misconduct. 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. 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. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. %PDF-1.5
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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. 4 0 obj
(Use sample 1). This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Lets say you missed a deadline for an important assignment and management has proposed removal. 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. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. 5 Douglas v. Veterans Administration, 5 M.S.P.R. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. How the factors will be applied in your disciplinary case depends on the specifics of your case. Yes___
No____Potential for rehabilitation can be both a major aggravating and mitigating factor. endstream
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But do not highlight them either. 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. 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. Cir. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. What every federal employee facing discipline should be familiar with: The Douglas Factors. Managers must apply penalties that are similar to those imposed in like cases. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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? Factor 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. endobj
Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed.