Also any awards or accolades the employee has would be mitigating in nature. 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. Similar offenses can be used to guide penalty selection. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. Discipline can range from letters of reprimand to short suspensions. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. For example, an allegation of dishonesty would be treated . One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. The nature and seriousness of the offense, and its relationship to the employee's . 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; %PDF-1.6 % The Douglas factors are also referred to as mitigating factors. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Do you need a table of penalties in OPM? Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. The more notorious the offense you commit the more severe the discipline you will face. COPYRIGHT 2023. 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. 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. 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). 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. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios . 72 0 obj <>stream yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! A mitigating factor is one that suggests the discipline be mitigated, or lowered. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Douglas Factors In Depth The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining . \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). PDF Chapter 4. Hud Table of Offenses and Penalties One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 502, 508 (1994) (holding that because 31 U.S.C. (Use sample 1). Do not deny the existence of bad facts. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. How do you handle these aggravating factors? 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. Factor: Employee's . The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Specific evidence/testimony as to why an employee can no longer be trusted is critical. In some instances, you may want to request that management reconsider your case. 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. 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. 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. 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. The Douglas Factors . In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. These are known as Douglas factors. 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. PDF Douglas Factors In Depth - Letter Carrier Connection 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. Relevant? endobj 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 1 0 obj 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. For example, a law enforcement officer is charged with enforcing laws. 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. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. 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. !%7K81E8zi. The fourth Douglas Factor requires managers to take an employees past performance into account. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Sample 1: I have attached the material relied on to support this proposed removal. 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.
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