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Do you need a table of penalties in OPM? Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. Your absence was not approved by your supervisor. % Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. Cir. See Douglas v. Veterans Administration, 5 M.S.P.R. Also any awards or accolades the employee has would be mitigating in nature. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 7 Douglas v. Veterans Administration, 5 M.S.P.R. These 12 factors play a key role in the outcome of federal employee discipline cases. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. The Douglas Factors . Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. If the person signed for receipt of the letter include that information. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Berry & Berry PLLC. what extent, the "Douglas" factors come into play or how egregious the act was. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. 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. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. This Douglas factor is not one of the more commonly cited Douglas factors. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. 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. endobj See Douglas v. Veterans Administration, 5 M.S.P.R. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Cir. 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. 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. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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 Douglas Factors . If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. Conclusions and vague statements do not hold much weight with third parties. See U.S. Discipline can range from letters of reprimand to short suspensions. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Visit WrightUSA.com to start your policy! Similar offenses can be used to guide penalty selection. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. In many cases, managers act as deciding officials in discipline cases. 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). <> endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream The fourth Douglas Factor requires managers to take an employees past performance into account. 1 0 obj Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Your job as an employee is to support your position as best as you possibly can. Cir. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. Your absence was not approved by your supervisor. 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 What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 5 Douglas v. Veterans Administration, 5 M.S.P.R. The final Douglas Factor asks both manager and employee to consider alternative penalties. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Only those Douglas Factors relevant to each case need be considered. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. You neither came to work nor did you call in your absence. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. 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). Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. For more information, visit WrightUSA.com. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. How do you handle these aggravating factors? Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. past performance). The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. You should review the table to make sure that your discipline is in keeping with this table. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. EAP can be reached by calling 1-800-XXX-XXXX. The site is secure. 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. 1999). 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. 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. On (DATE), you were scheduled to report to work at (TIME). Govexec.com . Lets say you missed a deadline for an important assignment and management has proposed removal. 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. 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. %PDF-1.5 % Relevant? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. Sample: Specification #1. How the factors will be applied in your disciplinary case depends on the specifics of your case. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. Negligent or accidental incidents will be viewed more favorably than intentional acts. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. This factor looks to the status of the employee. 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. This has often been considered one of the most important Douglas factors by the MSPB. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? How does action taken promote the efficiency of the service? 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Just knowing the rules, however, cant fully protect you if a case should arise. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. This table should be available to you as an employee. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Sample 1: I have attached the material relied on to support this proposed removal. 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. A deciding official must consider specific factors in determining the reasonableness of the penalty. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . ______________________________ __________________ (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. 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. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Did management send out a memo clarifying rules? Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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). 1985). Factor: Consistency with table of penalties 2. endobj Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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.