280 (1981) These factors are used to explain why the penalty was chosen. Which is why Federal Employee Professional Liability Insurance is critical. These factors are the following: 1. They likely held the same job you holdat some point in the past. 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? % (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Has an employee been on the job for a long time? As a general rule, the more negative publicity caused by an offense, the harsher the discipline. For more information, visit WrightUSA.com. The reason(s) for this action is (are) specified below. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Whether you use two charges in this case will depend upon the evidence available. 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. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. PDF Douglas Factors In Depth - Branch 38 NALC 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. What kind of recovery can I get in my discrimination case? If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 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 . This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. On the surface, many incidents of misconduct may seem to be similar. For example, an allegation of dishonesty would be treated . This factor looks to the status of the employee. These 12 factors play a key role in the outcome of federal employee discipline cases. Cir. 3 0 obj Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. Regardless, try to avoid getting into an argument with management over factors. 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. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. 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 determining an appropriate . Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. 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. If you are looking for a representative, note that we are not taking on any cases at this time. Relevant? That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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. %PDF-1.5 But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Private sector cases are drastically different. The Douglas Factors should be considered in selecting a penalty. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. But do not highlight them either. hbbd``b`:$ Hd V$D? 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. { 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. The Douglas Factors - United States Office of Personnel Management Only relevant factors must be included. This means you should provide objective facts to support your arguments if you can. Ultimately, the more credible evidence you can provide to support your position the better. The result will turn on the specifics of your case and the procedural posture as well. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Postal Service, 634 F.3d 1274, 1282 (Fed. -What kind of recovery can I get in my discrimination case? such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may h[M+}LX,? The site is secure. EAP can be reached by calling 1-800-XXX-XXXX. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 2015). The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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). Factor 7: Consistency of the penalty with any applicable agency table of penalties. Did management send out a memo clarifying rules? Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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 . 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. <>/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>> Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. COPYRIGHT 2023. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. 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. 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 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE disciplinary situations. The Douglas Factors explained, the keys to a discipline case - Ivancie Law In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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.
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