Cir. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . ALL RIGHTS RESERVED. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 2012) (internal citations and punctuation omitted). If you want you can download and read the fullDouglas v. V.A. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. If you list a factor you must explain why it is relevant. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The key is credibility. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Private sector cases are drastically different. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. 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. The site is secure. Explanation, if relevant:
(5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. 280 (1981). endobj
You neither came to work nor did you call in your absence. 2015). The Douglas Factors . 51, 8 (2001). The Douglas factors are also referred to as mitigating factors. 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. Factor: Employee's . The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. EAP can be reached by calling 1-800-XXX-XXXX. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. The fourth Douglas Factor requires managers to take an employees past performance into account. 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 reason(s) for this action is (are) specified below. Plaza America MSPB decision. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. 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. Acknowledgement of Receipt:
______________________________ __________________
(Employee's Name) (Date)
Sample:
If employee fails or refuses to sign the acknowledgement:
Sample:
I certify that I handed this proposed action to (Employees Name) on (Date). All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Let me give you an example. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Misconduct is also considered more severe if it is done maliciously or for personal gain. 72 0 obj
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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. Why can such behavior not be tolerated? On (DATE), you were scheduled to report to work at (TIME). ______________________________ __________________
(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. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. For example, a law enforcement officer is charged with enforcing laws. This Factor takes mitigating circumstances into account. 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. { 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. h[M+}LX,? Federal government websites often end in .gov or .mil. A deciding official must consider specific factors in determining the reasonableness of the penalty. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. Offenses related to intoxicants. 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. It is more often used to attempt to aggravate a 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. endobj
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rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). You should not list a factor unless it is relevant. 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. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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? Explanation, if relevant:
(3) The employee's past disciplinary record.Relevant? 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. 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? 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 federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. The Federal Starr is a publication by Starr Wright USA. The first time an employee is You need to look at the specifics of your case in light of the twelve factors. stream
Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? In addition, actions . 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. Note. 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). Do they have a positive track record? 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.