Before sharing sensitive information, make sure youre on a federal government site. But do not highlight them either. Explanation, if relevant: (6) 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; (8) The notoriety of the offense or its impact upon the reputation . Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 2012) (internal citations and punctuation omitted). The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. . We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 280 (1981) These factors are used to explain why the penalty was chosen. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. In many cases, managers act as deciding officials in discipline cases. 11700 Plaza America Drive Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Remain calm, deferential and respectful at all times. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. The fourth Douglas Factor requires managers to take an employees past performance into account. 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. endobj the case of Douglas vs. Veterans Administration, 5 M.S.P.R. xfg! \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. h[M+}LX,? In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. With responsibility comes greater obligation and scrutiny. { 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. 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). To some extent, this is a subjective question. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. 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. 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. <> 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. <>/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>> 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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 And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Your job as an employee is to support your position as best as you possibly can. Consistency of the penalty with any applicable agency table of penalties; 8. ______________________________ __________________ (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. Private sector cases are drastically different. Contact your employee relations advisor to get the information to fill in the blanks. Factor 3: The employees past disciplinary record. stream Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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 . Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Do you need a table of penalties in OPM? For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Also any awards or accolades the employee has would be mitigating in nature. The result will turn on the specifics of your case and the procedural posture as well. What kind of recovery can I get in my discrimination case? 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. 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. 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. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Cir. 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. 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. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. Regardless, try to avoid getting into an argument with management over factors. Relevant? The Douglas Factors . Berry & Berry PLLC. How does action taken promote the efficiency of the service? Cir. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. An official website of the United States government. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Factor: Nature and seriousness 9. 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 These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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 . 10 Ward v. U.S. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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). 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. 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. If the person signed for receipt of the letter include that information. Relevant? generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios By William N. Rudman . Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. Similar offenses can be used to guide penalty selection. 9 Ward v. U.S. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. Can someone help me present the Douglas Factors to management? Let me give you an example. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. EachDouglas Factor can work for or against an employee depending on their specific case. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 502, 508 (1994) (holding that because 31 U.S.C. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. It is important that you really highlightthefactors that are in your favor. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Douglas Factors for Federal Employees - berrylegal 1985). Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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). %PDF-1.5 % A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. This article covers the Douglas Factors. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. Internal Control Evaluation, page 21 . If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. But they may refuse to. 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. 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. generadores de diesel precios Press Briefing by Press Secretary Karine Jean-Pierre 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. For instance, did the employee have access to the table of penalties? Can an employee take responsibility, correct their behavior and come back to the job? Cir. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. PDF DOI Department Manual Table of Offenses and Penalties 1 0 obj What is the table of penalties? - idswater.com On the surface, many incidents of misconduct may seem to be similar. past performance). An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Do not deny the existence of bad facts. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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 Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. MSPB decision. Did the employee have access to a handbook that detailed proper procedure and policy? Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. The more notorious the offense you commit the more severe the discipline you will face. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. The Douglas Factors explained, the keys to a discipline case - Ivancie Law Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. -What kind of recovery can I get in my discrimination case? Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Ultimately, managers are people too. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The Douglas Factors should be considered in selecting a penalty. The Douglas Factors: What You Need to Know - Medium Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Negligent or accidental incidents will be viewed more favorably than intentional acts. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). disciplinary situations. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. 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. 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. These 12 factors play a key role in the outcome of federal employee discipline cases. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. %PDF-1.5 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. <> 3 0 obj Such cases call into question an employees ability to perform their specific job duties with integrity. 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. 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. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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? Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Managers and supervisors should properly document the employee misconduct. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 0 The final Douglas Factor asks both manager and employee to consider alternative penalties. 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. Your absence was not approved by your supervisor. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 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. 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. 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. posted June 9, 2003. Lets say you missed a deadline for an important assignment and management has proposed removal. 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; This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. For example, a law enforcement officer is charged with enforcing laws. @b o $&F Sq70 # 280, 290 (1981). 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. Offenses related to intoxicants. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). This means you should provide objective facts to support your arguments if you can. Misconduct is also considered more severe if it is done maliciously or for personal gain. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Cir. 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. However, the principle of "like penalties for like offenses" does not require perfect consistency. % ALL RIGHTS RESERVED. The first time an employee is Cir. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Factor: Employee's . Douglas Factor Analysis. 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? 280, 302 (1981). %PDF-1.6 % Be clear, terse, and apologetic. Yes___ No____This factor is one of the more technically difficult to apply.