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To some extent, this is a subjective question. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Regardless, try to avoid getting into an argument with management over factors. 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? Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. While each case is different, seeking alternatives may be useful. a. Only relevant factors must be included. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Be clear, terse, and apologetic. You need to look at the specifics of your case in light of the twelve factors. 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 . The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Factor: Notoriety and impact 3. How do you handle these aggravating factors? For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. 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). This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. past performance). !%7K81E8zi. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. 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. Plaza America This Quick Start Guide covers the following Key Points: 1. 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. This one is pretty self-explanatory. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Discipline can range from letters of reprimand to short suspensions. 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. The employee's job level and type of employment . See Douglas v. Veterans Administration, 5 M.S.P.R. Cir. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. 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 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. 49 0 obj <> endobj unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. By William N. Rudman . Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Private sector cases are drastically different. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Let me give you an example. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. These terms are used commonly in Douglas Factors application. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. For example, a law enforcement officer is charged with enforcing laws. The Douglas factors are also referred to as mitigating factors. 2012) (internal citations and punctuation omitted). 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. In theory, discipline should be both corrective and progressive. 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. Explanation, if relevant: (9) 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. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). 280 (1981). h[M+}LX,? These are known as Douglas factors. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. The Douglas Factors . @b o $&F Sq70 # 1999). 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. COPYRIGHT 2023. The Douglas Factors: Disciplining employees is a fact of life. The Douglas Factors include: 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. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Can someone help me present the Douglas Factors to management? * Douglas v. Veterans Administration, 5 M.S.P.R. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 10 Ward v. U.S. What kind of recovery can I get in my discrimination case? However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. With responsibility comes greater obligation and scrutiny. This means you should provide objective facts to support your arguments if you can. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Whether you use two charges in this case will depend upon the evidence available. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. How the factors will be applied in your disciplinary case depends on the specifics of your case. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Managers and supervisors should properly document the employee misconduct. Lets say you missed a deadline for an important assignment and management has proposed removal. 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. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. 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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Cir. endstream endobj startxref This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Discipline can range from letters of reprimand to short suspensions. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Offenses related to intoxicants. Your absence was not approved by your supervisor. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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? 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. 11700 Plaza America Drive This has often been considered one of the most important Douglas factors by the MSPB. A knowledge of the Douglas Factors is helpful for both federal employees and managers. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. 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 . 2015). Federal government websites often end in .gov or .mil. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Do they have a positive track record? If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Relevant? Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. ALL RIGHTS RESERVED. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 502, 508 (1994) (holding that because 31 U.S.C. A well presented reply to theproposed discipline can lead to substantial mitigation. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Relevant? 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. Contact your employee relations advisor to get the information to fill in the blanks. 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 . Similar offenses can be used to guide penalty selection. 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. The result will turn on the specifics of your case and the procedural posture as well. You should not list a factor unless it is relevant. 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 final Douglas Factor asks both manager and employee to consider alternative penalties. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Merit Systems Protection Board still follows today. WA This Douglas factor is important and we use this argument in our representation of federal employees. Relevant? Before sharing sensitive information, make sure youre on a federal government site. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. 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. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Managers must also consider the scope of the misconduct in the context of an employees position and job duties.