Cir. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Factor 7: Consistency of the penalty with any applicable agency table of penalties. On the surface, many incidents of misconduct may seem to be similar. 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. 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 . Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). See Douglas v. Veterans Administration, 5 M.S.P.R. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. endobj More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. 4 0 obj 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. By William N. Rudman . In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. We are currently not taking any new cases at this time. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 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). Additionally, your coworkers have their own assignments. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Merit Systems Protection Board still follows today. . This factor is generally an afterthought for both management and employees. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Plaza America 8.Douglas Factor Analysis. 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. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h 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 . 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 280 (1981). 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. 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. past performance). 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. 280, 305-06 (1981). An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Reston, VA 20190. 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. What kind of recovery can I get in my discrimination case? On (DATE), you were scheduled to report to work at (TIME). The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 10 Ward v. U.S. 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). This means you should provide objective facts to support your arguments if you can. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. 280, 302 (1981). However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Only relevant factors must be included. 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. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Postal Service, 634 F.3d 1274, 1279 (Fed. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Private sector cases are drastically different. MSPB decision. 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 . They know the stress of a career, they know how life can be difficult. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Cir. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Do not deny the existence of bad facts. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Factor: Employee's . 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. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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. 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). A supervisor cannot just say it; he/she has to prove it. 502, 508 (1994) (holding that because 31 U.S.C. But they may refuse to. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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.
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