Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The Federal Starr is a publication by Starr Wright USA. 3 0 obj For example, an allegation of dishonesty would be treated . Employees who can appeal an adverse action to the Board have constitutional due process rights. 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 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. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. The reason(s) for this action is (are) specified below. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Any personal issues going on around the time of the misconduct should be brought to the attention of management. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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 . 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. 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Check with your labor relations advisor. Offenses related to intoxicants. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. You need to look at the specifics of your case in light of the twelve factors. 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. 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. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. 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. h[M+}LX,? 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. 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. 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. endobj This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. 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. 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. 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. How does action taken promote the efficiency of the service? 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. 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). Let me give you an example. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. You neither came to work nor did you call in your absence. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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). This means you should provide objective facts to support your arguments if you can. Berry & Berry PLLC. 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. 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. 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. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Such cases call into question an employees ability to perform their specific job duties with integrity. 280 (1981) These factors are used to explain why the penalty was chosen. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Reston, VA 20190. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. <>/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>> This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If you list a factor you must explain why it is relevant. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. 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. 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. To some extent, this is a subjective question. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. 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 can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Your job as an employee is to support your position as best as you possibly can. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . What kind of recovery can I get in my discrimination case? Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. Regardless, try to avoid getting into an argument with management over factors. Be clear, terse, and apologetic. 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. (Use sample 1). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. hb```f``2c`a`,c`@ r, ^Ma Consistency of the penalty with any table of penalties an agency may have . Plaza America Sample 1: I have attached the material relied on to support this proposed removal. This factor is generally an afterthought for both management and employees. Cir. The factors may mitigate or aggravate (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.Relevant?
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