Don't force misconduct into a listed offense unless it accurately fits. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). past performance). Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 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 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. stream 3 Douglas v. Veterans Administration, 5 M.S.P.R. 4 0 obj For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. 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. 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. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 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. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? Sample 2: You have the right to review the material relied on to support this proposed removal. Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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. 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 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. Whether you use two charges in this case will depend upon the evidence available. removal). For instance, did the employee have access to the table of penalties? 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. 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). This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Postal Service, 634 F.3d 1274, 1279 (Fed. This factor looks to the status of the employee. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . This means you should provide objective facts to support your arguments if you can. Note. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. 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 . An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Be clear, terse, and apologetic. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Consistency of the penalty with any applicable agency table of penalties; 8. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Sometimes management may misapply factors, or misconstrue them. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. MSPB decision. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Plaza America Factor 1: 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. 0 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. Conclusions and vague statements do not hold much weight with third parties. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. The consistency of the penalty with any applicable agency table of penalties; 8. 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. 51, 8 (2001). Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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____What needs to be done to deter the conduct in the future by the employee or others? On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Only relevant factors must be included. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). -What kind of recovery can I get in my discrimination case? Relevant? Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. It is important that you really highlightthefactors that are in your favor. Additionally, this factor looks at intent. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. This factor is generally an afterthought for both management and employees. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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; This Douglas factor is not one of the more commonly cited Douglas factors. 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. 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. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. Managers must take an employees propensity for rehabilitation into account. Managers and supervisors should properly document the employee misconduct. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. h[M+}LX,? ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Yes___ No____This factor is one of the more technically difficult to apply. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Factor: Notoriety and impact 3. These are known as Douglas factors. Additionally, your coworkers have their own assignments. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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.