Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Factor 10: Potential for the employees 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. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. * Douglas v. Veterans Administration, 5 M.S.P.R. To some extent, this is a subjective question. 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 2012) (internal citations and punctuation omitted). This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. A well presented reply to theproposed discipline can lead to substantial mitigation. This one is pretty self-explanatory. PDF DOI Department Manual Table of Offenses and Penalties @ 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 . This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. If you want you can download and read the fullDouglas v. V.A. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. The Table provides for more serious penalties for . 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 49 0 obj <> endobj 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. 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 . 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. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. How the factors will be applied in your disciplinary case depends on the specifics of your case. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. Your absence was not approved by your supervisor. In some instances, you may want to request that management reconsider your case. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Determining the Penalty - United States Merit Systems Protection Board As a general rule, the more negative publicity caused by an offense, the harsher the discipline. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. posted June 9, 2003. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 1985). Ultimately, the more credible evidence you can provide to support your position the better. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. The Douglas Factors explained, the keys to a discipline case - Ivancie Law 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. 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 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. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Federal agencies may take disciplinary action against employees who engage in misconduct. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. 1999). PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Yes___ No____This factor is one of the more technically difficult to apply. Cir. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Relevant? 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. 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. In addition, actions . Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. . endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream 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. 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. endstream endobj startxref Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Berry & Berry PLLC. removal). Douglas Factors in Federal Employment - InformedFED 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. This Factor takes mitigating circumstances into account. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Before sharing sensitive information, make sure youre on a federal government site. 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. 4 0 obj EAP can be reached by calling 1-800-XXX-XXXX. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. 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:#/ Douglas Factors - Postal Reporter The Douglas Factors should be considered in selecting a penalty. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. See U.S. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. stream Conclusions and vague statements do not hold much weight with third parties. The nature and seriousness of the offense, and its relationship to the employee's . 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. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. 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. 280, 302 (1981). 280, 305-06 (1981). For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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? 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. 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . For example, an allegation of dishonesty would be treated . { 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. 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 Management has likely even required you to review the table and sign a form asserting your knowledge of it. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. Relevant? Don't force misconduct into a listed offense unless it accurately fits. Similar offenses can be used to guide penalty selection. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Cir. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. 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. 280 (1981) These factors are used to explain why the penalty was chosen. You neither came to work nor did you call in your absence. 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. <> 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? The site is secure. Cir. Agency's table of penalties recognizes this severity in establishing ranges of penalties for past performance). 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). 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Douglas Factor Analysis. This Douglas factor is not one of the more commonly cited Douglas factors. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. The Douglas Factors . Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Did the employee have access to a handbook that detailed proper procedure and policy? Factor: Consistency with table of penalties 2. Sometimes management may misapply factors, or misconstrue them. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Which is why Federal Employee Professional Liability Insurance is critical. Sample 2: You have the right to review the material relied on to support this proposed removal. 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. Only those Douglas Factors relevant to each case need be considered. Visit WrightUSA.com to start your 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Obtain insurance protection for your career today. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. %PDF-1.5 See Douglas v. Veterans Administration, 5 M.S.P.R. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. 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. Do they have a positive track record? (Use sample 1). A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Consistency of the penalty with any table of penalties an agency may have . 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. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. h[M+}LX,? 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. If you are looking for a representative, note that we are not taking on any cases at this time. 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; . @b o $&F Sq70 # The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 11700 Plaza America Drive The right to answer orally does not include the right to a formal hearing with examination of witnesses. PDF The Douglas Factors - Energy
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