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Additionally, your coworkers have their own assignments. 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. Your job as an employee is to support your position as best as you possibly can. Remain calm, deferential and respectful at all times. Factor: Employee's . These terms are used commonly in Douglas Factors application. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. 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. The final Douglas Factor asks both manager and employee to consider alternative penalties. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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. 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 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. @b o $&F Sq70 # 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; . These 12 factors play a key role in the outcome of federal employee discipline cases. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 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 reason(s) for this action is (are) specified below. 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. However, despite the importance of these criteria, many employees arent familiar with them. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. 1999). 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. If you list a factor you must explain why it is relevant. Let me give you an example. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz The more notorious the offense you commit the more severe the discipline you will face. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. The Douglas factors 8. Relevant? 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. Cir. 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. %%EOF consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . endobj In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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). a. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? An overlooked factabout the cost of hiring an attorney is that they can actually save you money. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r That translates into harsher penalties for repeat offenders. On (DATE), you were scheduled to report to work at (TIME). 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. A well presented reply to theproposed discipline can lead to substantial mitigation. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The Douglas factors are: (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; The nature and seriousness of the offense, and its relationship to the employee's . 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. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Yes___ No____This factor is one of the more technically difficult to apply. Agency's table of penalties recognizes this severity in establishing ranges of penalties for This is because it puts you on notice of the penalties which is factor #9, below. 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. 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 past performance). 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. This article covers the Douglas Factors. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. This factor lends itself most to employees arguing for leniency in their case. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The national media picked the story up, and it was very detrimental to the agency. Additionally, this factor looks at intent. In some instances, you may want to request that management reconsider your case. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. While each case is different, seeking alternatives may be useful. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee.