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? 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. For example, a law enforcement officer is charged with enforcing laws. 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. 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). 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. 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). 9 Ward v. U.S. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. This table should be available to you as an employee. What kind of recovery can I get in my discrimination case? 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. Cir. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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 . 8.Douglas Factor Analysis. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Douglas Factors - Postal Reporter Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Sample: Specification #1. 0 { 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. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. Be clear, terse, and apologetic. PDF Chapter 4. Hud Table of Offenses and Penalties In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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. 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. On the surface, many incidents of misconduct may seem to be similar. Douglas Factor Analysis. 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. Factor 10: Potential for the employees rehabilitation. These are known as Douglas factors. 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. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. 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). Managers must apply penalties that are similar to those imposed in like cases. Discipline can range from letters of reprimand to short suspensions. The key is credibility. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This is because it puts you on notice of the penalties which is factor #9, below. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? The site is secure. 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. What every federal employee facing discipline should be familiar with: The Douglas Factors. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). removal). Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. 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. Offenses related to intoxicants. How do you handle these aggravating factors? These factors are the following: 1. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Has an employee been on the job for a long time? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. See U.S. However, despite the importance of these criteria, many employees arent familiar with them. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). In some instances, you may want to request that management reconsider your case. 2015). Reston, VA 20190. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. We are currently not taking any new cases at this time. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Additionally, this factor looks at intent. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Cir. %PDF-1.5 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. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. EAP can be reached by calling 1-800-XXX-XXXX. If not, include delivery confirmation by the postal or delivery service. Also any awards or accolades the employee has would be mitigating in nature. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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 If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Cir. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. A Table of Penalties is a list of . Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . Weigh Douglas Factors in disciplinary cases - Ask The Lawyer Did the employee have access to a handbook that detailed proper procedure and policy? With responsibility comes greater obligation and scrutiny. ______________________________ __________________ (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. 10 Ward v. U.S. 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. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Before sharing sensitive information, make sure youre on a federal government site. Cir. 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 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; 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. Additionally, your coworkers have their own assignments. Your job as an employee is to support your position as best as you possibly can. 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. The Table provides for more serious penalties for . PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Any replies submitted will be given full consideration. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Cir. Check with your labor relations advisor. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. PDF Douglas Factors In Depth - Letter Carrier Connection 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. Whether you use two charges in this case will depend upon the evidence available. 280 (1981). 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. What is the table of penalties? - idswater.com It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. This factor is generally an afterthought for both management and employees. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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? 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. Remain calm, deferential and respectful at all times. 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. Obtain insurance protection for your career today. The reason(s) for this action is (are) specified below. 280 (1981) These factors are used to explain why the penalty was chosen. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Did management send out a memo clarifying rules? 1999). 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:#/ For more information, visit WrightUSA.com. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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 . However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. The result will turn on the specifics of your case and the procedural posture as well. 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 take disciplinary action against employees who engage in misconduct. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? Just knowing the rules, however, cant fully protect you if a case should arise. WA The Douglas Factors: Disciplining employees is a fact of life. 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. 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. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees 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. Lets say you missed a deadline for an important assignment and management has proposed removal. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Postal Service, 634 F.3d 1274, 1279 (Fed. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. what extent, the "Douglas" factors come into play or how egregious the act was. If you want you can download and read the fullDouglas v. V.A. Factor 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. 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. 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. Your absence was not approved by your supervisor. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Govexec.com . Factor: Notoriety and impact 3. The Douglas Factors should be considered in selecting a penalty. 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. This Douglas factor is not one of the more commonly cited Douglas factors. 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 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. @ 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 . Do they have a positive track record? 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. past performance). ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r A knowledge of the Douglas Factors is helpful for both federal employees and managers. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. 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. On (DATE), you were scheduled to report to work at (TIME). 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 . @b o $&F Sq70 # Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. 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. 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 . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . But do not highlight them either. <>/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>> Table Of Penalties Douglas Factors - aaaawintvcapdavid.link 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. What is effect of the misconduct charged? As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Note. 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. 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors.