Only those Douglas Factors relevant to each case need be considered. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Which is why Federal Employee Professional Liability Insurance is critical. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. Factor: Nature and seriousness 9. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. What every federal employee facing discipline should be familiar with: The Douglas Factors. 280 (1981). endobj consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Can an employee take responsibility, correct their behavior and come back to the job? With responsibility comes greater obligation and scrutiny. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. If you are looking for a representative, note that we are not taking on any cases at this time. %PDF-1.5 % The notoriety of the offense or its impact upon the reputation of the Agency; 9 . This table should be available to you as an employee. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. Any replies submitted will be given full consideration. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Sample: Specification #1. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. 72 0 obj <>stream However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Regardless, try to avoid getting into an argument with management over factors. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. In theory, discipline should be both corrective and progressive. Obtain insurance protection for your career today. Cir. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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? 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). 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. Private sector cases are drastically different. The Table provides for more serious penalties for . Misconduct is also considered more severe if it is done maliciously or for personal gain. Your absence was not approved by your supervisor. 280, 305-06 (1981). \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Managers and supervisors should properly document the employee misconduct. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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 ? How does action taken promote the efficiency of the service? generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. Suite 305 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. 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. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The nature and seriousness of the offense, and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; the potential for the employees rehabilitation; mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and. 0 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. 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 time an employee is Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Your absence was not approved by your supervisor. . 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. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. endobj If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. (Use sample 1). In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Reston, VA 20190. The nature and seriousness of the offense, and its relationship to the employee's . 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, 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. 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. Managers must take an employees propensity for rehabilitation into account. We need to specifically state why there is erosion of supervisory confidence. The fourth Douglas Factor requires managers to take an employees past performance into account. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 2015). Let me give you an example. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). The Federal Starr is a publication by Starr Wright USA. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. MSPB decision. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Negligent or accidental incidents will be viewed more favorably than intentional acts. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Has an employee been on the job for a long time? Discipline can range from letters of reprimand to short suspensions. 280, 290 (1981). Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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. But they may refuse to. 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. You should review the table to make sure that your discipline is in keeping with this table. Just knowing the rules, however, cant fully protect you if a case should arise. See U.S. What is effect of the misconduct charged? It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). * Douglas v. Veterans Administration, 5 M.S.P.R. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). By William N. Rudman . Ultimately, managers are people too. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Visit WrightUSA.com to start your policy! Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 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). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz This one is pretty self-explanatory. @b o $&F Sq70 # Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Cir. This Douglas factor is not one of the more commonly cited Douglas factors. However, if you properly argue this factor it can go a long way towards helping your case. When looking for an attorney make sure they have experience handling federal-sector employment cases. 2278 0 obj <>stream The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 280, 302 (1981). \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 9 Ward v. U.S. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Did management send out a memo clarifying rules? Employees who can appeal an adverse action to the Board have constitutional due process rights. Note. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Postal Service, 634 F.3d 1274, 1282 (Fed. 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. <> past performance). Cir. Can someone help me present the Douglas Factors to management? Douglas Factor Analysis. 7 Douglas v. Veterans Administration, 5 M.S.P.R. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. ______________________________ __________________ (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. The result will turn on the specifics of your case and the procedural posture as well. 280 (1981) These factors are used to explain why the penalty was chosen. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. They know the stress of a career, they know how life can be difficult. To some extent, this is a subjective question. How do you handle these aggravating factors? 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. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. It is more often used to attempt to aggravate a disciplinary penalty. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. 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. WA 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. removal). 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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:#/ 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. 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.