Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. 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. 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? Federal government websites often end in .gov or .mil. Consistency of the penalty with any table of penalties an agency may have . You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. See Douglas v. Veterans Administration, 5 M.S.P.R. In some instances, you may want to request that management reconsider your case. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. 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. Did management send out a memo clarifying rules? The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Yes___
No____What needs to be done to deter the conduct in the future by the employee or others? 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. posted June 9, 2003. [;C;@){
:@H- - 3VLL
L.L.q^h8N),H3q30 (
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. 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. Merit Systems Protection Board still follows today. 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. 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. 10.Right to Reply Paragraph:
Sample:
This notice is a proposal and not a decision. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# The Federal Starr is a publication by Starr Wright USA. If this is impractical to do, use Sample 2. !%7K81E8zi. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Federal agencies may take disciplinary action against employees who engage in misconduct. 49 0 obj
<>
endobj
Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. If the person signed for receipt of the letter include that information. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. h[M+}LX,? However, the principle of "like penalties for like offenses" does not require perfect consistency. The Douglas Factors . 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. 14.CC:s
CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC:
PAGE
PAGE 9
/ 0 1 2 3 ? 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 280 (1981)
These factors are used to explain why the penalty was chosen. 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. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. Sample 1: I have attached the material relied on to support this proposed removal. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Yes___
No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. Yes___
No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Relevant? hbbd``b`:$ Hd V$D? Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). What is effect of the misconduct charged? endstream
endobj
startxref
Relevant? Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. A supervisor cannot just say it; he/she has to prove it. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. These factors are the following: 1. This Douglas factor is important and we use this argument in our representation of federal employees. Private sector cases are drastically different. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. past performance). 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 .