The Federal Starr is a publication by Starr Wright USA. Only relevant factors must be included. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. Regardless, try to avoid getting into an argument with management over factors. 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. <>
However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. This Douglas factor is important and we use this argument in our representation of federal employees. 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 argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. 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. We are currently not taking any new cases at this time. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. The Douglas Factors - Melville Johnson For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. PDF The Douglas Factors - United States Office of Personnel Management 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. COPYRIGHT 2023. 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. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Just knowing the rules, however, cant fully protect you if a case should arise. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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. 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. In addition, actions . Federal government websites often end in .gov or .mil. %
Explanation, if relevant:
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 280 (1981)
These factors are used to explain why the penalty was chosen. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz xfg! hb```f``2c`a`,c`@ r, ^Ma Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor 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. 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. Yes___
No____This factor is one of the more technically difficult to apply. Explanation, if relevant:
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Explanation, if relevant:
(4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Don't force misconduct into a listed offense unless it accurately fits. %PDF-1.5
%
The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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 . In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Merit Systems Protection Board still follows today. 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. Other times it may mean providing some evidence to management to further support your position. 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. %PDF-1.5
You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). WA For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Your job as an employee is to support your position as best as you possibly can. Table Of Penalties Douglas Factors Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 1999). Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. 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. 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. endstream
endobj
startxref
Can someone help me present the Douglas Factors to management? MSPB decision. Douglas Factors in Federal Employment - InformedFED (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. <>
When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. The national media picked the story up, and it was very detrimental to the agency. For example, an allegation of dishonesty would be treated . 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. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Postal Service, 634 F.3d 1274, 1282 (Fed. If this is impractical to do, use Sample 2. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. 13.Receipt Certification:
If hand-delivered:
Sample:
Please sign the acknowledgement of receipt below. Any replies submitted will be given full consideration. 2015). <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
The more notorious the offense you commit the more severe the discipline you will face. Explanation, if relevant:
(11) 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.Relevant? \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The factors may mitigate or aggravate (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.Relevant? Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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). In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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). 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
Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. !%7K81E8zi. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. . NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Yes___
No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. This factor lends itself most to employees arguing for leniency in their case. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities.