Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. 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. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Factor 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. MSPB decision. 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. 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. Let me give you an example. past performance). So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. 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. 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. Your job as an employee is to support your position as best as you possibly can. 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. Sample 1: I have attached the material relied on to support this proposed removal. 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). 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 1985). A supervisor cannot just say it; he/she has to prove it. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Also any awards or accolades the employee has would be mitigating in nature. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. If not, include delivery confirmation by the postal or delivery service. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. In theory, discipline should be both corrective and progressive. 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; Private sector cases are drastically different. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. Cir. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Internal Control Evaluation, page 21 . 2278 0 obj <>stream Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. You will be notified in writing of the final decision. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Consistency of the penalty with any applicable agency table of penalties; 8. Only relevant factors must be included. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. 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. 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. 280 (1981) These factors are used to explain why the penalty was chosen. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 51, 8 (2001). 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. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. The Douglas factors are also referred to as mitigating factors. (Use sample 1). 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? Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). However, if you properly argue this factor it can go a long way towards helping your case. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. hbbd``b`:$ Hd V$D? Ultimately, the more credible evidence you can provide to support your position the better. 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. <>>> 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. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Managers must apply penalties that are similar to those imposed in like cases. Govexec.com . 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. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. But they may refuse to. !%7K81E8zi. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. 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. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r These terms are used commonly in Douglas Factors application. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Factor: Consistency with table of penalties 2. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Relevant? 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. Check with your labor relations advisor. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. This factor looks to the status of the employee. Cir. The idea is that discipline is meantto be corrective and progressive. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. 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. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights.
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