For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. 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. 2015). 280, 290 (1981). 280 (1981). If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ This Douglas factor is important and we use this argument in our representation of federal employees. A supervisor cannot just say it; he/she has to prove it. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. 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. This Factor takes mitigating circumstances into account. Managers must take an employees propensity for rehabilitation into account. It is more often used to attempt to aggravate a disciplinary penalty. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. How does action taken promote the efficiency of the service? 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. Cir. Don't force misconduct into a listed offense unless it accurately fits. 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Just knowing the rules, however, cant fully protect you if a case should arise. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Federal agencies may take disciplinary action against employees who engage in misconduct. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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. 280, 305-06 (1981). If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. Cir. endobj The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. 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. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Regardless, try to avoid getting into an argument with management over factors. Only those Douglas Factors relevant to each case need be considered. A well presented reply to theproposed discipline can lead to substantial mitigation. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Do you need a table of penalties in OPM? Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . However, if you properly argue this factor it can go a long way towards helping your case. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. An official website of the United States government. 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. 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. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 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. Cir. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. EachDouglas Factor can work for or against an employee depending on their specific case. ALL RIGHTS RESERVED. Note. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Cir. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 2 0 obj 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 Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Cir. This article covers the Douglas Factors. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. 4 0 obj Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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 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. Consistency of the penalty with any applicable agency table of penalties; 8. Relevant? 10 Ward v. U.S. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Misconduct is also considered more severe if it is done maliciously or for personal gain. Similar offenses can be used to guide penalty selection. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. 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? Ultimately, managers are people too. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. Do not deny the existence of bad facts. 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. Do they have a positive track record? Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. 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. For example, a law enforcement officer is charged with enforcing laws. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Federal government websites often end in .gov or .mil. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Offenses related to intoxicants. It is important that you really highlightthefactors that are in your favor. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.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. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. In theory, discipline should be both corrective and progressive. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. Additionally, your coworkers have their own assignments. What every federal employee facing discipline should be familiar with: The Douglas Factors. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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. You will be notified in writing of the final decision. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. The national media picked the story up, and it was very detrimental to the agency. removal). rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Such cases call into question an employees ability to perform their specific job duties with integrity. Lets say you missed a deadline for an important assignment and management has proposed removal. In some instances, you may want to request that management reconsider your case. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter The Douglas Factors: Disciplining employees is a fact of life. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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). Sample 2: You have the right to review the material relied on to support this proposed removal. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Contact your employee relations advisor to get the information to fill in the blanks. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Other times it may mean providing some evidence to management to further support your position. 1999). Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence.
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