The Douglas Factors . This article covers the Douglas Factors. Specification #2. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. WA Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 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. Also any awards or accolades the employee has would be mitigating in nature. This factor looks to the status of the employee. { 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. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Only those Douglas Factors relevant to each case need be considered. If you want you can download and read the fullDouglas v. V.A. 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. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& See Douglas v. Veterans Administration, 5 M.S.P.R. endobj 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 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. The Douglas Factors: Disciplining employees is a fact of life. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. An official website of the United States government. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. ALL RIGHTS RESERVED. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. MSPB decision. 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. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ This one is pretty self-explanatory. Postal Service, 634 F.3d 1274, 1282 (Fed. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Relevant? Berry & Berry PLLC. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. Don't force misconduct into a listed offense unless it accurately fits. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Relevant? Consistency of the penalty with any applicable agency table of penalties; 8. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. h[M+}LX,? On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. In many cases, managers act as deciding officials in discipline cases. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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? 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. 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. i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ 49 0 obj <> endobj 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 . You neither came to work nor did you call in your absence. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. Relevant? We need to specifically state why there is erosion of supervisory confidence. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Consistency of the penalty with any table of penalties an agency may have . 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. 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. EAP can be reached by calling 1-800-XXX-XXXX. 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. hb```f``2c`a`,c`@ r, ^Ma This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Plaza America what extent, the "Douglas" factors come into play or how egregious the act was. 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 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. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal.

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