Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. You neither came to work nor did you call in your absence. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> These factors are: 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. If you are looking for a representative, note that we are not taking on any cases at this time. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! We are currently not taking any new cases at this time. Suite 305 The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Managers must take an employees propensity for rehabilitation into account. With responsibility comes greater obligation and scrutiny. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). The consistency of the penalty with any applicable agency table of penalties; 8. Just knowing the rules, however, cant fully protect you if a case should arise. 2 0 obj Deciding officials should do a Douglas analysis in every case, except when Congress . It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). Consistency of the penalty with any table of penalties an agency may have . Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. disciplinary situations. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? endstream endobj startxref Any personal issues going on around the time of the misconduct should be brought to the attention of management. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. This factor lends itself most to employees arguing for leniency in their case. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. It is more often used to attempt to aggravate a disciplinary penalty. %PDF-1.6 % -What kind of recovery can I get in my discrimination case? When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The Douglas Factors should be considered in selecting a penalty. If you want you can download and read the fullDouglas v. V.A. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Do you need a table of penalties in OPM? Cir. 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. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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. 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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 . 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. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. A deciding official must consider specific factors in determining the reasonableness of the penalty. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Douglas Factor Analysis. 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. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. This factor looks to the status of the employee. Employees who can appeal an adverse action to the Board have constitutional due process rights. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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 . For instance, did the employee have access to the table of penalties? Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Did the employee have access to a handbook that detailed proper procedure and policy? Has an employee been on the job for a long time? Factor: Consistency with table of penalties 2. 280, 302 (1981). Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 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. This Factor takes mitigating circumstances into account. Contact your employee relations advisor to get the information to fill in the blanks. But they may refuse to. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. This factor is generally an afterthought for both management and employees. What if I do not agree with managements analysisof a specific Douglas Factor? 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. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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. Factor 10: Potential for the employees rehabilitation. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 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). Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. This one is pretty self-explanatory. 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. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Additionally, your coworkers have their own assignments. 49 0 obj <> endobj 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. A supervisor cannot just say it; he/she has to prove it. This is because it puts you on notice of the penalties which is factor #9, below. The Douglas factors are also referred to as mitigating factors. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. !%7K81E8zi. stream 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.
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