Similar offenses can be used to guide penalty selection. Douglas Factors - Postal Reporter 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. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal generadores de diesel precios If you are looking for a representative, note that we are not taking on any cases at this time. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. 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). We need to specifically state why there is erosion of supervisory confidence. 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 This table should be available to you as an employee. 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. 280 (1981) These factors are used to explain why the penalty was chosen. In theory, discipline should be both corrective and progressive. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The Douglas factors 8. 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 . You neither came to work nor did you call in your absence. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. By William N. Rudman . 2015). The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. 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 . This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Specification #2. what extent, the "Douglas" factors come into play or how egregious the act was. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. We are currently not taking any new cases at this time. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. Factor 10: Potential for the employees rehabilitation. 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Employees who can appeal an adverse action to the Board have constitutional due process rights. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 7 Douglas v. Veterans Administration, 5 M.S.P.R. This is because it puts you on notice of the penalties which is factor #9, below. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Factor 7: Consistency of the penalty with any applicable agency table of penalties. Factor: Consistency with table of penalties 2. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. This article covers the Douglas Factors. !%7K81E8zi. Table Of Penalties Douglas Factors PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties %PDF-1.5 3 Douglas v. Veterans Administration, 5 M.S.P.R. You need to look at the specifics of your case in light of the twelve factors. This Factor takes mitigating circumstances into account. 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. To some extent, this is a subjective question. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The reason(s) for this action is (are) specified below. 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. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Deciding officials should do a Douglas analysis in every case, except when Congress . Note. You will be notified in writing of the final decision. The Douglas factors are also referred to as mitigating factors. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. 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. h[M+}LX,? 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? This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. For more information, visit WrightUSA.com. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Ultimately, the more credible evidence you can provide to support your position the better. If the person signed for receipt of the letter include that information. Cir. 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). 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. 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. You neither came to work nor did you call in your absence. 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. You should not list a factor unless it is relevant. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. hbbd``b`:$ Hd V$D? Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Sometimes management may misapply factors, or misconstrue them. 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). Misconduct and Discipline | U.S. Department of the Interior How do you handle these aggravating factors? Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. In addition, actions . 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. The first time an employee is The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. What is the table of penalties? - idswater.com 8.Douglas Factor Analysis. 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. 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. %PDF-1.6 % However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Be clear, terse, and apologetic. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. past performance). 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. If you want you can download and read the fullDouglas v. V.A. What every federal employee facing discipline should be familiar with: The Douglas Factors. 2 0 obj Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). Don't force misconduct into a listed offense unless it accurately fits. Contact your employee relations advisor to get the information to fill in the blanks. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 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. Discipline can range from letters of reprimand to short suspensions. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. Your absence was not approved by your supervisor. For example, an allegation of dishonesty would be treated . 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 . PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Any personal issues going on around the time of the misconduct should be brought to the attention of management. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. endobj 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. Internal Control Evaluation, page 21 . Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE 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. What if I do not agree with managements analysisof a specific Douglas Factor? Can an employee take responsibility, correct their behavior and come back to the job? 1999). 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 . It is important to rebut these issues in a Douglas factor defense. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). 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. The employee's job level and type of employment . past performance). generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Whether you use two charges in this case will depend upon the evidence available. However, if you properly argue this factor it can go a long way towards helping your case. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. On (DATE), you were scheduled to report to work at (TIME). When looking for an attorney make sure they have experience handling federal-sector employment cases. This one is pretty self-explanatory. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. MSPB decision. Consistency of the penalty with any table of penalties an agency may have . What kind of recovery can I get in my discrimination case? Cir. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. endobj Your absence was not approved by your supervisor. disciplinary situations. 2012) (internal citations and punctuation omitted). You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. <> Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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 . This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. That translates into harsher penalties for repeat offenders. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? PDF Committee on Oversight and Government Reform U.S. House of DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Berry & Berry PLLC. 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. Relevant? 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. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty.
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