the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Just knowing the rules, however, cant fully protect you if a case should arise. The right to answer orally does not include the right to a formal hearing with examination of witnesses. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Deciding officials should do a Douglas analysis in every case, except when Congress . Contact your employee relations advisor to get the information to fill in the blanks. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army This table should be available to you as an employee. The result will turn on the specifics of your case and the procedural posture as well. Factor 7: Consistency of the penalty with any applicable agency table of penalties. That translates into harsher penalties for repeat offenders. Why can such behavior not be tolerated? WA @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ By William N. Rudman . 2 0 obj 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. The Douglas factors are also referred to as mitigating factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Only relevant factors must be included. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. If not, include delivery confirmation by the postal or delivery service. Any replies submitted will be given full consideration. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. PDF Douglas Factors - AFGE Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? When looking for an attorney make sure they have experience handling federal-sector employment cases. PDF DOI Department Manual Table of Offenses and Penalties It is more often used to attempt to aggravate a disciplinary penalty. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? past performance). But they may refuse to. ^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. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link What is the table of penalties? - idswater.com PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . How do you handle these aggravating factors? 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Has an employee been on the job for a long time? generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. Factor: Nature and seriousness 9. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. If the person signed for receipt of the letter include that information. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? The key is credibility. 1985). These 12 factors play a key role in the outcome of federal employee discipline cases. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. On (DATE), you were scheduled to report to work at (TIME). -What kind of recovery can I get in my discrimination case? 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. removal). 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. 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. Cir. 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. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. A well presented reply to theproposed discipline can lead to substantial mitigation. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). If you are looking for a representative, note that we are not taking on any cases at this time. 9 Ward v. U.S. 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. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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. Internal Control Evaluation, page 21 . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. This is because it puts you on notice of the penalties which is factor #9, below. The Douglas factors 8. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . The .gov means its official. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. Relevant? Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. Be clear, terse, and apologetic. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. . Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. You need to look at the specifics of your case in light of the twelve factors. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. %PDF-1.5 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 . 49 0 obj <> endobj Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The Federal Starr is a publication by Starr Wright USA. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. This article covers the Douglas Factors. Other times it may mean providing some evidence to management to further support your position. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Did management send out a memo clarifying rules? The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. <> The Douglas Factors . You should not list a factor unless it is relevant. 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. Sometimes management may misapply factors, or misconstrue them. a. 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. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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? hb```f``2c`a`,c`@ r, ^Ma 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; NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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). A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? The idea is that discipline is meantto be corrective and progressive. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). An official website of the United States government. 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 . More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. <>/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>> Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Relevant? PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties What kind of recovery can I get in my discrimination case? * Douglas v. Veterans Administration, 5 M.S.P.R. These factors are the following: 1. 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. Do you need a table of penalties in OPM? These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Yes___ No____This factor is one of the more technically difficult to apply. 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. 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. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Cir. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them.
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