COPYRIGHT 2023. 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. 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. Why can such behavior not be tolerated? For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. A well presented reply to theproposed discipline can lead to substantial mitigation. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Cir. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. But they may refuse to. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. See U.S. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. The Douglas factors 8. Can an employee take responsibility, correct their behavior and come back to the job? 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. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Visit WrightUSA.com to start your policy! Check with your labor relations advisor. 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 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). These terms are used commonly in Douglas Factors application. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 280, 302 (1981). Remain calm, deferential and respectful at all times. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . This has often been considered one of the most important Douglas factors by the MSPB. 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. 1985). -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Your absence was not approved by your supervisor. 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. 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 . past performance). Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. 49 0 obj <> endobj If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 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. Cir. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 4 0 obj 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). See Douglas v. Veterans Administration, 5 M.S.P.R. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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 what extent, the "Douglas" factors come into play or how egregious the act was. Starr Wright USA is the nations leading provider of FEPLI. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Factor 3: The employees past disciplinary record. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. 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, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. 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. Did the employee have access to a handbook that detailed proper procedure and policy? 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. The notoriety of the offense or its impact upon the reputation of the agency; . Employees who can appeal an adverse action to the Board have constitutional due process rights. 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? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 280, 290 (1981). 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The national media picked the story up, and it was very detrimental to the agency. a. The idea is that discipline is meantto be corrective and progressive. 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. * Douglas v. Veterans Administration, 5 M.S.P.R. EAP can be reached by calling 1-800-XXX-XXXX. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Be clear, terse, and apologetic. 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. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). 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. h[M+}LX,? Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. How does action taken promote the efficiency of the service? 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 2278 0 obj <>stream Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Do they have a positive track record? Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 280, 305-06 (1981). What if I do not agree with managements analysisof a specific Douglas Factor? 11700 Plaza America Drive Your job as an employee is to support your position as best as you possibly can. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. There are certain standards of behavior and conduct expected of employees by our external and internal customers. 280 (1981) These factors are used to explain why the penalty was chosen. 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). In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. With responsibility comes greater obligation and scrutiny. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. 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. The Douglas factors are also referred to as mitigating factors. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r On (DATE), you were scheduled to report to work at (TIME). The key is credibility. This Quick Start Guide covers the following Key Points: 1.