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Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Suite 305 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? Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Factor: Notoriety and impact 3. 3 0 obj Plaza America If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This one is pretty self-explanatory. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. h[M+}LX,? Additionally, this factor looks at intent. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Douglas Factor Analysis. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 2015). The Douglas factors 8. . Internal Control Evaluation, page 21 . 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. Do you need a table of penalties in OPM? Federal government websites often end in .gov or .mil. A knowledge of the Douglas Factors is helpful for both federal employees and managers. If you are low level employee with no supervisory functions this factor should have some mitigating value. Whether you use two charges in this case will depend upon the evidence available. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Only those Douglas Factors relevant to each case need be considered. 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. Why can such behavior not be tolerated? a. Cir. Cir. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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. 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. 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. 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. The .gov means its official. 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. On (DATE), you were scheduled to report to work at (TIME). The fourth Douglas Factor requires managers to take an employees past performance into account. For instance, did the employee have access to the table of penalties? 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. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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, 1377 (Fed. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. Your job as an employee is to support your position as best as you possibly can. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . <> 280, 290 (1981). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. It is more often used to attempt to aggravate a disciplinary penalty. You need to look at the specifics of your case in light of the twelve factors. past performance). 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. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 502, 508 (1994) (holding that because 31 U.S.C. 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. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Also any awards or accolades the employee has would be mitigating in nature. Did the employee have access to a handbook that detailed proper procedure and policy? Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. @b o $&F Sq70 # This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. On the surface, many incidents of misconduct may seem to be similar. 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Only relevant factors must be included. 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. You neither came to work nor did you call in your absence. what extent, the "Douglas" factors come into play or how egregious the act was. Specification #2. A supervisor cannot just say it; he/she has to prove it. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. By William N. Rudman . Cir. You should not list a factor unless it is relevant. The Douglas Factors . Conclusions and vague statements do not hold much weight with third parties. The Douglas Factors . 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Sometimes management may misapply factors, or misconstrue them. 1999). 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. What every federal employee facing discipline should be familiar with: The Douglas Factors. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. 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 . Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Sample: Specification #1. 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. A well presented reply to theproposed discipline can lead to substantial mitigation. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. endobj The final Douglas Factor asks both manager and employee to consider alternative penalties. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. Postal Service, 634 F.3d 1274, 1282 (Fed. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. These terms are used commonly in Douglas Factors application. 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. Can someone help me present the Douglas Factors to management? 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. Cir. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. What kind of recovery can I get in my discrimination case? This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Factor 3: The employees past disciplinary record. They know the stress of a career, they know how life can be difficult. Factor: Consistency with table of penalties 2. 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). This factor is generally an afterthought for both management and employees. 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 . Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. The 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 . 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 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. * Douglas v. Veterans Administration, 5 M.S.P.R. Lets say you missed a deadline for an important assignment and management has proposed removal. 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. endobj 280 (1981) These factors are used to explain why the penalty was chosen. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. 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. (Use sample 1). You neither came to work nor did you call in your absence. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. If you list a factor you must explain why it is relevant. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 2278 0 obj <>stream Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Consistency of the penalty with any table of penalties an agency may have . Remain calm, deferential and respectful at all times. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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. endobj NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. If this is impractical to do, use Sample 2. 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? Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 0 But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. However, despite the importance of these criteria, many employees arent familiar with them. The Federal Starr is a publication by Starr Wright USA. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. You will be notified in writing of the final decision. <>/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>> 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. 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. Reston, VA 20190. 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. 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. Similar offenses can be used to guide penalty selection. What if I do not agree with managements analysisof a specific Douglas Factor? Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. <>>> xfg! For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. If you have been disciplined before you will face harsher discipline going forward. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. dollar tree associate career center, samsung a32 pre installed apps list,