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. Just knowing the rules, however, cant fully protect you if a case should arise. 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. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. The idea is that discipline is meantto be corrective and progressive. How the factors will be applied in your disciplinary case depends on the specifics of your case. Similar offenses can be used to guide penalty selection. posted June 9, 2003. Cir. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Discipline can range from letters of reprimand to short suspensions. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. It is more often used to attempt to aggravate a disciplinary penalty. 1999). 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. You need to look at the specifics of your case in light of the twelve factors. Any replies submitted will be given full consideration. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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. 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. Federal government websites often end in .gov or .mil. past performance). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 72 0 obj <>stream Negligent or accidental incidents will be viewed more favorably than intentional acts. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Your job as an employee is to support your position as best as you possibly can. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. !%7K81E8zi. Your absence was not approved by your supervisor. If you have been disciplined before you will face harsher discipline going forward. WA Sample 2: You have the right to review the material relied on to support this proposed removal. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. The reason(s) for this action is (are) specified below. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Whether you use two charges in this case will depend upon the evidence available. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. The Federal Starr is a publication by Starr Wright USA. PDF Douglas Factors - AFGE 280, 305-06 (1981). PDF Chapter 4. Hud Table of Offenses and Penalties If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. Relevant? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Your absence was not approved by your supervisor. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Note. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. @ 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 . disciplinary situations. EachDouglas Factor can work for or against an employee depending on their specific case. Douglas Factors - Postal Reporter Managers must take an employees propensity for rehabilitation into account. 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. endstream endobj startxref Cir. endobj . A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. 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 . PDF Committee on Oversight and Government Reform U.S. House of 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. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may ALL RIGHTS RESERVED. 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. 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. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. For more information, visit WrightUSA.com. Relevant? 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. 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. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Factor 2: The employees 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. The employee's job level and type of employment . However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Cir. The notoriety of the offense or its impact upon the reputation of the agency; . Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 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.