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. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Factor 7: Consistency of the penalty with any applicable agency table of penalties. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. 2278 0 obj <>stream This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. { 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. 280 (1981) These factors are used to explain why the penalty was chosen. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. 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? Relevant? 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. Federal government websites often end in .gov or .mil. 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 But they may refuse to. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. But do not highlight them either. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Cir. past performance). 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. 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. If you are looking for a representative, note that we are not taking on any cases at this time. i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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). The Table provides for more serious penalties for . Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Managers and supervisors should properly document the employee misconduct. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). <> If you are low level employee with no supervisory functions this factor should have some mitigating value. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? posted June 9, 2003. You neither came to work nor did you call in your absence. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). This Quick Start Guide covers the following Key Points: 1. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. You neither came to work nor did you call in your absence. You should review the table to make sure that your discipline is in keeping with this table. 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? Relevant? 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. Postal Service, 634 F.3d 1274, 1282 (Fed. 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. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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 . to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. In many cases, managers act as deciding officials in discipline cases. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. The Douglas Factors: Disciplining employees is a fact of life. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Cir. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. Federal agencies may take disciplinary action against employees who engage in misconduct. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. This means you should provide objective facts to support your arguments if you can. 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. Suite 305 These are known as Douglas factors. 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. endobj 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? 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Cir. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The nature and seriousness of the offense, and its relationship to the employee's . In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Managers must take an employees propensity for rehabilitation into account. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. However, if you properly argue this factor it can go a long way towards helping your case. 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. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. !%7K81E8zi. Just knowing the rules, however, cant fully protect you if a case should arise. 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; . 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r EAP can be reached by calling 1-800-XXX-XXXX. The Douglas factors 8. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. The key is credibility. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. They likely held the same job you holdat some point in the past. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? @ 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 .