4 0 obj Postal Service, 634 F.3d 1274, 1282 (Fed. 280, 302 (1981). Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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. 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. The idea is that discipline is meantto be corrective and progressive. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. <> affidavits, performance ratings, SF-50s, letters of commendation) for the record. Relevant? If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Did the employee have access to a handbook that detailed proper procedure and policy? ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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:#/ The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Deciding officials should do a Douglas analysis in every case, except when Congress . Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. 49 0 obj <> endobj 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. past performance). 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. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. You neither came to work nor did you call in your absence. EAP can be reached by calling 1-800-XXX-XXXX. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. How do you handle these aggravating factors? Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Factor 10: Potential for the employees rehabilitation. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The national media picked the story up, and it was very detrimental to the agency. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. This Douglas factor is important and we use this argument in our representation of federal employees. 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. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. Additionally, your coworkers have their own assignments. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Merit Systems Protection Board still follows today. 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. 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. These factors are the following: 1. 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. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . disciplinary situations. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. How the factors will be applied in your disciplinary case depends on the specifics of your case. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 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. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Suite 305 This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Relevant? If you want you can download and read the fullDouglas v. V.A. Cir. 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. 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. 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. 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). For example, an allegation of dishonesty would be treated . This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. This factor lends itself most to employees arguing for leniency in their case. 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 . ______________________________ __________________ (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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. MSPB decision. In many cases, managers act as deciding officials in discipline cases. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Visit WrightUSA.com to start your policy! This is because it puts you on notice of the penalties which is factor #9, below. The Douglas factors are: (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; Employees who can appeal an adverse action to the Board have constitutional due process rights. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. It is more often used to attempt to aggravate a disciplinary penalty. 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. 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? 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. Factor 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. 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. Sometimes management may misapply factors, or misconstrue them. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Agency's table of penalties recognizes this severity in establishing ranges of penalties for What kind of recovery can I get in my discrimination case? Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. But they may refuse to. The more notorious the offense you commit the more severe the discipline you will face. a. 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. 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. { 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 2015). Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Internal Control Evaluation, page 21 . If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. In addition, actions . Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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. removal). A deciding official must consider specific factors in determining the reasonableness of the penalty. 1985). 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 1999). The Federal Starr is a publication by Starr Wright USA. Federal agencies may take disciplinary action against employees who engage in misconduct. 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. 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 Whether you use two charges in this case will depend upon the evidence available. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Specific evidence/testimony as to why an employee can no longer be trusted is critical. The employee's job level and type of employment . Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. endobj 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? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 280, 305-06 (1981). Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Relevant? 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). Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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. Your job as an employee is to support your position as best as you possibly can. 2 0 obj 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. 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? ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. Ultimately, managers are people too. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. (Use sample 1). They likely held the same job you holdat some point in the past. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. Factor: Nature and seriousness 9. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. The Table provides for more serious penalties for . \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. 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. 280, 290 (1981). Cir. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. If you have been disciplined before you will face harsher discipline going forward. !%7K81E8zi. If the person signed for receipt of the letter include that information. 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. Can an employee take responsibility, correct their behavior and come back to the job? Sample: Specification #1. hb```f``2c`a`,c`@ r, ^Ma Cir. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 11700 Plaza America Drive Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. EachDouglas Factor can work for or against an employee depending on their specific case. It is important that you really highlightthefactors that are in your favor. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. COPYRIGHT 2023. Be clear, terse, and apologetic. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Why can such behavior not be tolerated? 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. 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. This table should be available to you as an employee. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. To some extent, this is a subjective question. Sample 2: You have the right to review the material relied on to support this proposed removal. The final Douglas Factor asks both manager and employee to consider alternative penalties. 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. 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. Yes___ No____This factor is one of the more technically difficult to apply. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 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. 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. By William N. Rudman . The key is credibility. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Note. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. ALL RIGHTS RESERVED. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). * Douglas v. Veterans Administration, 5 M.S.P.R. Specification #2. 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. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty.
Noli Me Tangere Musical And Theatrical Elements,
Country Radio Stations New Jersey,
Sonny In The Heights Undocumented,
Crete Funeral Home Obituaries,
Capricorn Moon Woman Physical Appearance,
Articles T