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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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 <>>>
The Douglas Factors include: 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. 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. Govexec.com . 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
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-[ @n}[jr}Sr S=G @2@dfxj-BtAQ Whether you use two charges in this case will depend upon the evidence available. When looking for an attorney make sure they have experience handling federal-sector employment cases. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. 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. 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. 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 . 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:#/ Factor 3: The employees past disciplinary record. 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. 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. 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. While each case is different, seeking alternatives may be useful. 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. 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. Private sector cases are drastically different. However, despite the importance of these criteria, many employees arent familiar with them. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Offenses related to intoxicants. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. 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; Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 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. 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Misconduct is also considered more severe if it is done maliciously or for personal gain. This is because it puts you on notice of the penalties which is factor #9, below. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. 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. Don't force misconduct into a listed offense unless it accurately fits. 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. 3 0 obj
Cir. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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. 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 . 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. a. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. %
For example, a law enforcement officer is charged with enforcing laws. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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. 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). Yes___
No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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 . For example, an allegation of dishonesty would be treated . 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. 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 . 0
The site is secure. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. However, the principle of "like penalties for like offenses" does not require perfect consistency. This Douglas factor is not one of the more commonly cited Douglas factors. Relevant? Conclusions and vague statements do not hold much weight with third parties. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. The .gov means its official. You will be notified in writing of the final decision. endobj
Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. It is more often used to attempt to aggravate a disciplinary penalty. %PDF-1.6
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On (DATE), you were scheduled to report to work at (TIME). Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. Managers must apply penalties that are similar to those imposed in like cases. By William N. Rudman . Yes___
No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. 51, 8 (2001). The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 280 (1981) These factors are used to explain why the penalty was chosen. 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. { 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. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Factor: Notoriety and impact 3. 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. Managers must take an employees propensity for rehabilitation into account. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 9 Ward v. U.S. 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. 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. 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. 10.Right to Reply Paragraph:
Sample:
This notice is a proposal and not a decision. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Do not deny the existence of bad facts. %PDF-1.5
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You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. An official website of the United States government. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Cir. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. <>
Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. affidavits, performance ratings, SF-50s, letters of commendation) for the record. This factor looks to the status of the employee. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Let me give you an example. Cir. Relevant? 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. This has often been considered one of the most important Douglas factors by the MSPB. 49 0 obj
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Lets say you missed a deadline for an important assignment and management has proposed removal. Yes___
No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Cir. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. 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. The national media picked the story up, and it was very detrimental to the agency. Did management send out a memo clarifying rules? Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Negligent or accidental incidents will be viewed more favorably than intentional acts. Other times it may mean providing some evidence to management to further support your position. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Factor: Consistency with table of penalties 2. To some extent, this is a subjective question. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. It is important to rebut these issues in a Douglas factor defense. Federal agencies may take disciplinary action against employees who engage in misconduct. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 280, 305-06 (1981). Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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. If not, include delivery confirmation by the postal or delivery service. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). 64 0 obj
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For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. stream
Explanation, if relevant:
(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. 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. Yes___
No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. 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. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The Douglas Factors: Disciplining employees is a fact of life. . Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Plaza America The final Douglas Factor asks both manager and employee to consider alternative penalties. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 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. Remain calm, deferential and respectful at all times. The reason(s) for this action is (are) specified below. You neither came to work nor did you call in your absence. These factors are the following: 1. 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. This Quick Start Guide covers the following Key Points: 1. 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 . On the surface, many incidents of misconduct may seem to be similar. Agency's table of penalties recognizes this severity in establishing ranges of penalties for One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. Factor 10: Potential for the employees rehabilitation. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
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