72 0 obj <>stream 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. Remain calm, deferential and respectful at all times. You neither came to work nor did you call in your absence. 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. Be clear, terse, and apologetic. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. Cir. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. 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 ? 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. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. These terms are used commonly in Douglas Factors application. A supervisor cannot just say it; he/she has to prove it. 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. Before sharing sensitive information, make sure youre on a federal government site. In theory, discipline should be both corrective and progressive. Berry & Berry PLLC. Cir. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. What if I do not agree with managements analysisof a specific Douglas Factor? 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. Conclusions and vague statements do not hold much weight with third parties. 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 . This is because it puts you on notice of the penalties which is factor #9, below. 8.Douglas Factor Analysis. 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. Also any awards or accolades the employee has would be mitigating in nature. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. You neither came to work nor did you call in your absence. endstream endobj startxref It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . On the surface, many incidents of misconduct may seem to be similar. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Only those Douglas Factors relevant to each case need be considered. 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 . Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Deciding officials should do a Douglas analysis in every case, except when Congress . What every federal employee facing discipline should be familiar with: The Douglas Factors. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. If not, include delivery confirmation by the postal or delivery service. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. Let me give you an example. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. -What kind of recovery can I get in my discrimination case? 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. 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. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. The Douglas Factors . Did management send out a memo clarifying rules? Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 1 0 obj 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. 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 to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. If you are looking for a representative, note that we are not taking on any cases at this time. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The first time an employee is With responsibility comes greater obligation and scrutiny. Discipline can range from letters of reprimand to short suspensions. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Managers must apply penalties that are similar to those imposed in like cases. Note. Additionally, your coworkers have their own assignments. Has an employee been on the job for a long time? 3 0 obj 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. 10 Ward v. U.S. If you want you can download and read the fullDouglas v. V.A. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. These are known as Douglas factors. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n For more information, visit WrightUSA.com. 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. You need to look at the specifics of your case in light of the twelve factors. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. 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. %PDF-1.5 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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 1985). The national media picked the story up, and it was very detrimental to the agency. The Table provides for more serious penalties for . 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. 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. stream But do not highlight them either. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). COPYRIGHT 2023. By William N. Rudman . Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Offenses related to intoxicants. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. This Quick Start Guide covers the following Key Points: 1. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 9 Ward v. U.S. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. EachDouglas Factor can work for or against an employee depending on their specific case. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Sometimes management may misapply factors, or misconstrue them. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. @b o $&F Sq70 # If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. Relevant? Federal agencies may take disciplinary action against employees who engage in misconduct. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Relevant? \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. (Use sample 1). 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. 1999). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Reston, VA 20190. Agency's table of penalties recognizes this severity in establishing ranges of penalties for hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. If you have been disciplined before you will face harsher discipline going forward. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. ALL RIGHTS RESERVED. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. It is more often used to attempt to aggravate a disciplinary penalty. 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. See U.S. 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. 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. { 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. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. endobj 0 This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. Can someone help me present the Douglas Factors to management? Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? In addition, actions . 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. 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. 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). 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. 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. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. Factor 3: The employees past disciplinary record. 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. 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. 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 (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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. We need to specifically state why there is erosion of supervisory confidence. Any replies submitted will be given full consideration. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. See Douglas v. Veterans Administration, 5 M.S.P.R. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. If this is impractical to do, use Sample 2. Cir. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Discipline can range from letters of reprimand to short suspensions. 280, 305-06 (1981). An official website of the United States government. 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. <> In many cases, managers act as deciding officials in discipline cases. 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. Your absence was not approved by your supervisor. 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. 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. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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 . For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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. Cir. 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. 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. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Factor: Employee's .
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