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. 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. Do you need a table of penalties in OPM?
PDF Douglas Factors In Depth - Branch 38 NALC Deciding officials should do a Douglas analysis in every case, except when Congress . Cir. %
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Internal Control Evaluation, page 21 . 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; 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; the notoriety of the offense or its impact upon the reputation of the agency; 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; the potential for the employees rehabilitation; 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; and. 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. In some instances, you may want to request that management reconsider your case. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. Managers must take an employees propensity for rehabilitation into account.
Douglas Factors in Federal Employment - InformedFED 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. 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; . ALL RIGHTS RESERVED. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. If you have been disciplined before you will face harsher discipline going forward. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. For example, an allegation of dishonesty would be treated . Don't force misconduct into a listed offense unless it accurately fits. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Managers must apply penalties that are similar to those imposed in like cases. 2012) (internal citations and punctuation omitted). For example, a law enforcement officer is charged with enforcing laws. You should review the table to make sure that your discipline is in keeping with this table.
generadores de diesel precios You need to look at the specifics of your case in light of the twelve factors. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. This one is pretty self-explanatory. !%7K81E8zi. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. A Table of Penalties is a list of . 1985). Douglas Factor Analysis. But they may refuse to. 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Offenses related to intoxicants. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Cir. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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.
PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army 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. Remain calm, deferential and respectful at all times. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . However, despite the importance of these criteria, many employees arent familiar with them. Explanation, if relevant:
(7) Consistency of the penalty with any applicable agency table of penalties. 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). If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. If the person signed for receipt of the letter include that information. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Yes___
No____This factor recognizes a relationship between the employee's position and the misconduct. 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA|
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(2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. 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. what extent, the "Douglas" factors come into play or how egregious the act was. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. They likely held the same job you holdat some point in the past. 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? 72 0 obj
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A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . In theory, discipline should be both corrective and progressive. 49 0 obj
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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. 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. Yes___
No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. The notoriety of the offense or its impact upon the reputation of the agency; . Ultimately, managers are people too. endstream
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What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 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. 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 . 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.
PDF DOI Department Manual Table of Offenses and Penalties 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? 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). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). However, the principle of "like penalties for like offenses" does not require perfect consistency. How do you handle these aggravating factors? In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Your absence was not approved by your supervisor. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. xfg! A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Regardless, try to avoid getting into an argument with management over factors. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The nature and seriousness of the offense, and its relationship to the employee's . 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Federal government websites often end in .gov or .mil. 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. 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. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. past performance). This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. A supervisor cannot just say it; he/she has to prove it. 51, 8 (2001). 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. [;C;@){
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No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time.
The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . How the factors will be applied in your disciplinary case depends on the specifics of your case. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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 . 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. The Douglas Factors should be considered in selecting a penalty. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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. 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. 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. To some extent, this is a subjective question. In addition, actions . This factor lends itself most to employees arguing for leniency in their case. Visit WrightUSA.com to start your policy! Relevant? These factors are the following: 1. Can someone help me present the Douglas Factors to management? EAP can be reached by calling 1-800-XXX-XXXX. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Yes___
No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB).
In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Note. Check with your labor relations advisor. 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 . A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors.
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. Sample:
Specification #1. 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. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. endobj
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.