Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. In many cases, managers act as deciding officials in discipline cases. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Factor: Nature and seriousness 9. Internal Control Evaluation, page 21 . For example, an allegation of dishonesty would be treated . Specification #2. 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. 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. 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. 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. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. It is more often used to attempt to aggravate a disciplinary penalty. These factors are the following: 1. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. Managers must apply penalties that are similar to those imposed in like cases. 3 0 obj 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. %%EOF 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. past performance). This Douglas factor is not one of the more commonly cited Douglas factors. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. 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). Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. xfg! For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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). 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. %PDF-1.5 % Relevant? Sample 1: I have attached the material relied on to support this proposed removal. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. 2278 0 obj <>stream Specific evidence/testimony as to why an employee can no longer be trusted is critical. Douglas Factors In Depth The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining . 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. . A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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? Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. See U.S. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. What is effect of the misconduct charged? Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Your job as an employee is to support your position as best as you possibly can. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. This is because it puts you on notice of the penalties which is factor #9, below. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Factor: Consistency with table of penalties 2. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. 11700 Plaza America Drive Cir. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Additionally, your coworkers have their own assignments. Additionally, this factor looks at intent. The Table provides for more serious penalties for . Relevant? 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). posted June 9, 2003. 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 . 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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 . If you have been disciplined before you will face harsher discipline going forward. Do not deny the existence of bad facts. Sometimes management may misapply factors, or misconstrue them. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Remain calm, deferential and respectful at all times. The Federal Starr is a publication by Starr Wright USA. 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. Has an employee been on the job for a long time? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Don't force misconduct into a listed offense unless it accurately fits. 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 The final Douglas Factor asks both manager and employee to consider alternative penalties. 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. For more information, visit WrightUSA.com. The nature and seriousness of the offense, and its relationship to the employee's . These terms are used commonly in Douglas Factors application. By William N. Rudman . If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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). Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Do they have a positive track record? The .gov means its official. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. The Douglas Factors . 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. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Govexec.com . This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. !%7K81E8zi. This factor is generally an afterthought for both management and employees. 280, 302 (1981). For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 9 Ward v. U.S. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. You neither came to work nor did you call in your absence. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. What every federal employee facing discipline should be familiar with: The Douglas Factors. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. EachDouglas Factor can work for or against an employee depending on their specific case. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. Visit WrightUSA.com to start your policy! It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Your absence was not approved by your supervisor. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. 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. That translates into harsher penalties for repeat offenders. 280 (1981). 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. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Any personal issues going on around the time of the misconduct should be brought to the attention of management. 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. This factor looks to the status of the employee. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Ultimately, the more credible evidence you can provide to support your position the better. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. %PDF-1.5 Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. For example, a law enforcement officer is charged with enforcing laws. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Whether you use two charges in this case will depend upon the evidence available. Before sharing sensitive information, make sure youre on a federal government site. Only relevant factors must be included. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. 51, 8 (2001). Consistency of the penalty with any applicable agency table of penalties; 8. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. A Table of Penalties is a list of . These are known as Douglas factors. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. 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. what extent, the "Douglas" factors come into play or how egregious the act was. 1999). Consistency of the penalty with any table of penalties an agency may have . So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Reston, VA 20190. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Which is why Federal Employee Professional Liability Insurance is critical. 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. 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. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. Cir. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Merit Systems Protection Board still follows today. * Douglas v. Veterans Administration, 5 M.S.P.R. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). The consistency of the penalty with any applicable agency table of penalties; 8. 280 (1981) These factors are used to explain why the penalty was chosen. But do not highlight them either. 2015). Berry & Berry PLLC. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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? 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? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. Factor 10: Potential for the employees rehabilitation. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Can someone help me present the Douglas Factors to management? Regardless, try to avoid getting into an argument with management over factors. Factor 1: 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. Discipline can range from letters of reprimand to short suspensions. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? These factors are: 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. 72 0 obj <>stream the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. The Douglas factors are also referred to as mitigating factors. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty.
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