280 (1981) These factors are used to explain why the penalty was chosen. But do not highlight them either. Offenses related to intoxicants. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Similar offenses can be used to guide penalty selection. The Douglas Factors . Your absence was not approved by your supervisor. Discipline can range from letters of reprimand to short suspensions. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Deciding officials should do a Douglas analysis in every case, except when Congress . 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? The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. If you are looking for a representative, note that we are not taking on any cases at this time. These 12 factors play a key role in the outcome of federal employee discipline cases. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. This factor lends itself most to employees arguing for leniency in their case. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Reston, VA 20190. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. Cir. past performance). This has often been considered one of the most important Douglas factors by the MSPB. 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. 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. In theory, discipline should be both corrective and progressive. 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. This Factor takes mitigating circumstances into account. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Lets say you missed a deadline for an important assignment and management has proposed removal. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. 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. However, if you properly argue this factor it can go a long way towards helping your case. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. 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. 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. 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 . Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. 280, 305-06 (1981). If you are low level employee with no supervisory functions this factor should have some mitigating value. ______________________________ __________________ (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. But they may refuse to. 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. Whether you use two charges in this case will depend upon the evidence available. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Any personal issues going on around the time of the misconduct should be brought to the attention of management. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. The idea is that discipline is meantto be corrective and progressive. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. If you have been disciplined before you will face harsher discipline going forward. Your absence was not approved by your supervisor. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. However, despite the importance of these criteria, many employees arent familiar with them. 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. Be clear, terse, and apologetic. 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 Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Relevant? endobj We are currently not taking any new cases at this time. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. The result will turn on the specifics of your case and the procedural posture as well. !%7K81E8zi. This Douglas factor is important and we use this argument in our representation of federal employees. What is effect of the misconduct charged? Cir. 2015). This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. That translates into harsher penalties for repeat offenders. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The first time an employee is Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? Cir. Relevant? The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 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. You should not list a factor unless it is relevant. A Table of Penalties is a list of . yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Sample: Specification #1. While each case is different, seeking alternatives may be useful. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. Suite 305 Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Visit WrightUSA.com to start your policy! 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. Cir. These terms are used commonly in Douglas Factors application. 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Factor: Notoriety and impact 3. <> 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. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. . The key is credibility. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. The Federal Starr is a publication by Starr Wright USA. Factor 7: Consistency of the penalty with any applicable agency table of penalties. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. Why can such behavior not be tolerated? In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 1999). See U.S. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. You will be notified in writing of the final decision. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). @b o $&F Sq70 # <>>> Relevant? And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. However, the principle of "like penalties for like offenses" does not require perfect consistency. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Postal Service, 634 F.3d 1274, 1282 (Fed. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The .gov means its official. 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. 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. endobj <> What every federal employee facing discipline should be familiar with: The Douglas Factors. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Which is why Federal Employee Professional Liability Insurance is critical. 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? The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. Such cases call into question an employees ability to perform their specific job duties with integrity. Factor: Nature and seriousness 9. Cir. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Additionally, your coworkers have their own assignments. stream %PDF-1.5 % 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Obtain insurance protection for your career today. 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. How do you handle these aggravating factors? A supervisor cannot just say it; he/she has to prove it. 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. 0 Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs.
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