hbbd``b`:$ Hd V$D? 3 Douglas v. Veterans Administration, 5 M.S.P.R. Factor 10: Potential for the employees rehabilitation. [;C;@){
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Sample 2: You have the right to review the material relied on to support this proposed removal. 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. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Regardless, try to avoid getting into an argument with management over factors. 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. While each case is different, seeking alternatives may be useful. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. ^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. 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. 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. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Explanation, if relevant:
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? -What kind of recovery can I get in my discrimination case? For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Conclusions and vague statements do not hold much weight with third parties. %PDF-1.5
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Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. What if I do not agree with managements analysisof a specific Douglas Factor? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 11.Representation Paragraph(s):
Sample:
You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. Discipline can range from letters of reprimand to short suspensions. 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. The .gov means its official. Before sharing sensitive information, make sure youre on a federal government site. 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 . Yes___
No____What needs to be done to deter the conduct in the future by the employee or others? 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. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Relevant? At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. They likely held the same job you holdat some point in the past. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. Such cases call into question an employees ability to perform their specific job duties with integrity. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. In many cases, managers act as deciding officials in discipline cases. But do not highlight them either. 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. This means you should provide objective facts to support your arguments if you can. 8.Douglas Factor Analysis. The employee's job level and type of employment . 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. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Sometimes management may misapply factors, or misconstrue them. 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. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 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). The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. These terms are used commonly in Douglas Factors application. !%7K81E8zi. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Internal Control Evaluation, page 21 . 64 0 obj
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It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. Cir. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. If the person signed for receipt of the letter include that information. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. %PDF-1.5
A knowledge of the Douglas Factors is helpful for both federal employees and managers. Douglas Factor Analysis. You neither came to work nor did you call in your absence. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Don't force misconduct into a listed offense unless it accurately fits. Remain calm, deferential and respectful at all times. 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. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. These factors are the following: 1. 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 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. Note. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. 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. To some extent, this is a subjective question. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. See U.S. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. This one is pretty self-explanatory. Do they have a positive track record? The factors may mitigate or aggravate (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.Relevant? 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. 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). Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty.