MSPB decision. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. disciplinary situations. past performance). In theory, discipline should be both corrective and progressive. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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 . Let me give you an example. 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. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Cir. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 4 0 obj 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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; the potential for the employees rehabilitation; 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; and. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 1999). On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. It is important that you really highlightthefactors that are in your favor. But do not highlight them either. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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). 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. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Only relevant factors must be included. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . a. The right to answer orally does not include the right to a formal hearing with examination of witnesses. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. While each case is different, seeking alternatives may be useful. Factor 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. See Douglas v. Veterans Administration, 5 M.S.P.R. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. past performance). Federal government websites often end in .gov or .mil. 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. Factor: Nature and seriousness 9. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. That translates into harsher penalties for repeat offenders. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Sometimes management may misapply factors, or misconstrue them. Similar offenses can be used to guide penalty selection. What is effect of the misconduct charged? Before sharing sensitive information, make sure youre on a federal government site. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Other times it may mean providing some evidence to management to further support your position. ______________________________ __________________ (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. This Quick Start Guide covers the following Key Points: 1. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The .gov means its official. 502, 508 (1994) (holding that because 31 U.S.C. If you have been disciplined before you will face harsher discipline going forward. 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. You should review the table to make sure that your discipline is in keeping with this table. 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. The Table provides for more serious penalties for . hb```f``2c`a`,c`@ r, ^Ma To some extent, this is a subjective question. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Berry & Berry PLLC. 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). Your job as an employee is to support your position as best as you possibly can. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. The key is credibility. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Ultimately, managers are people too. 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 . 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 . 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.
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