For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 3 0 obj For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. % Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. disciplinary situations. Negligent or accidental incidents will be viewed more favorably than intentional acts. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We are currently not taking any new cases at this time. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. 72 0 obj <>stream This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. See U.S. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. <> Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. It is important to rebut these issues in a Douglas factor defense. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Plaza America The Douglas Factors . But they may refuse to. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 280 (1981) These factors are used to explain why the penalty was chosen. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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. Factor 10: Potential for the employees rehabilitation. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. Sometimes management may misapply factors, or misconstrue them. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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 Discipline can range from letters of reprimand to short suspensions. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. When looking for an attorney make sure they have experience handling federal-sector employment cases. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. The right to answer orally does not include the right to a formal hearing with examination of witnesses. The consistency of the penalty with any applicable agency table of penalties; 8. !%7K81E8zi. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). Ultimately, the more credible evidence you can provide to support your position the better. 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. For more information, visit WrightUSA.com. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Factor 7: Consistency of the penalty with any applicable agency table of penalties. 5 Douglas v. Veterans Administration, 5 M.S.P.R. A knowledge of the Douglas Factors is helpful for both federal employees and managers. This Quick Start Guide covers the following Key Points: 1. 2278 0 obj <>stream That translates into harsher penalties for repeat offenders. Cir. Explanation, if relevant: (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. They know the stress of a career, they know how life can be difficult. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. Internal Control Evaluation, page 21 . 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). The first time an employee is This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. what extent, the "Douglas" factors come into play or how egregious the act was. In some instances, you may want to request that management reconsider your case. 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. Relevant? Just knowing the rules, however, cant fully protect you if a case should arise. The Douglas factors are: (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; If you are low level employee with no supervisory functions this factor should have some mitigating value. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. 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. Such cases call into question an employees ability to perform their specific job duties with integrity. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. Be clear, terse, and apologetic. 1999). As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. stream xfg! 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. Do not deny the existence of bad facts. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. %PDF-1.6 % All other penalty determinations should undergo thorough reasoning under the Douglas Factors. This Factor takes mitigating circumstances into account. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. If the person signed for receipt of the letter include that information. . Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. COPYRIGHT 2023. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Merit Systems Protection Board still follows today. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . 2012) (internal citations and punctuation omitted). 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. Deciding officials should do a Douglas analysis in every case, except when Congress . 49 0 obj <> endobj yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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). 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. 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. Any replies submitted will be given full consideration. -What kind of recovery can I get in my discrimination case? The national media picked the story up, and it was very detrimental to the agency. 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. For example, an allegation of dishonesty would be treated . 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Additionally, your coworkers have their own assignments. Note. 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. The Federal Starr is a publication by Starr Wright USA. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. On the surface, many incidents of misconduct may seem to be similar. While each case is different, seeking alternatives may be useful. These terms are used commonly in Douglas Factors application. Agency's table of penalties recognizes this severity in establishing ranges of penalties for endstream endobj startxref The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. endobj consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Your absence was not approved by your supervisor. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. ______________________________ __________________ (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. 280, 305-06 (1981). A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Cir. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Factor: Consistency with table of penalties 2. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s).