Explanation, if relevant: (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.Relevant? If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. See Douglas v. Veterans Administration, 5 M.S.P.R. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. The employee's job level and type of employment . The Douglas Factors - United States Office of Personnel Management Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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:#/ Explanation, if relevant: (3) The employee's past disciplinary record.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). A well presented reply to theproposed discipline can lead to substantial mitigation. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. On (DATE), you were scheduled to report to work at (TIME). Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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). An official website of the United States government. 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios If you are looking for a representative, note that we are not taking on any cases at this time. Cir. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). PDF DOI Department Manual Table of Offenses and Penalties These 12 factors play a key role in the outcome of federal employee discipline cases. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. Relevant? If you want you can download and read the fullDouglas v. V.A. The Federal Starr is a publication by Starr Wright USA. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. 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. The notoriety of the offense or its impact upon the reputation of the agency; . Misconduct is also considered more severe if it is done maliciously or for personal gain. 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. 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. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Berry & Berry PLLC. For instance, did the employee have access to the table of penalties? Employees who can appeal an adverse action to the Board have constitutional due process rights. These factors are: The nature and seriousness of the offense and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. 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. A supervisor cannot just say it; he/she has to prove it. Suite 305 The Table provides for more serious penalties for . 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Other times it may mean providing some evidence to management to further support your position. Consistency of the penalty with any table of penalties an agency may have . Only relevant factors must be included. 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 . 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? The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. 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. This is because it puts you on notice of the penalties which is factor #9, below. If the person signed for receipt of the letter include that information. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. In addition, actions . 280 (1981). Conclusions and vague statements do not hold much weight with third parties. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. Ultimately, the more credible evidence you can provide to support your position the better. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. The first time an employee is This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Check with your labor relations advisor. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 1999). Sometimes management may misapply factors, or misconstrue them. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. . Remain calm, deferential and respectful at all times. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. Relevant? Agency's table of penalties recognizes this severity in establishing ranges of penalties for At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Additionally, this factor looks at intent. Relevant? On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. However, despite the importance of these criteria, many employees arent familiar with them. 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. 280, 305-06 (1981). to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. How do you handle these aggravating factors? What is effect of the misconduct charged? When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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. Cir. Discipline can range from letters of reprimand to short suspensions. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. ______________________________ __________________ (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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz PDF Douglas Factors - AFGE Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Douglas Factor Analysis. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. Do you need a table of penalties in OPM? 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. Did the employee have access to a handbook that detailed proper procedure and policy? If not, include delivery confirmation by the postal or delivery service. <>>> You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Press Briefing by Press Secretary Karine Jean-Pierre 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. endobj PDF The Douglas Factors - United States Office of Personnel Management This Factor takes mitigating circumstances into account. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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 ? It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Factor 3: The employees past disciplinary record. 280, 290 (1981). U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Just knowing the rules, however, cant fully protect you if a case should arise. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. Cir. EAP can be reached by calling 1-800-XXX-XXXX. The Douglas Factors - Melville Johnson The Douglas Factors . If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Determining the Penalty - United States Merit Systems Protection Board You neither came to work nor did you call in your absence. This table should be available to you as an employee. 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. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Cir. 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 1985). 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 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. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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 . 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. Your absence was not approved by your supervisor. With responsibility comes greater obligation and scrutiny. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. You will be notified in writing of the final decision. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Do not deny the existence of bad facts. 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. See U.S. 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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). h[M+}LX,? You need to look at the specifics of your case in light of the twelve factors. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. . If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). endobj %%EOF Note. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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 72 0 obj <>stream 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation .
Man Found Dead On Fort Lauderdale Beach,
Knee Replacement Pain After 10 Years,
Obituary Gifford Florida,
Beko Oven Symbols Rubbed Off,
Articles T