If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. You will be notified in writing of the final decision. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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 originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Factor: Notoriety and impact 3. 280, 302 (1981). In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 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. Yes___
No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. !%7K81E8zi. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. In theory, discipline should be both corrective and progressive. Internal Control Evaluation, page 21 . 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. Relevant? Starr Wright USA is the nations leading provider of FEPLI. 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 72 0 obj
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Opinions expressed in this article are for informational purposes only and do not constitute legal advice. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Whether you use two charges in this case will depend upon the evidence available. 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). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. On (DATE), you were scheduled to report to work at (TIME). 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Misconduct is also considered more severe if it is done maliciously or for personal gain. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Managers and supervisors should properly document the employee misconduct. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. You neither came to work nor did you call in your absence. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Such cases call into question an employees ability to perform their specific job duties with integrity. 0
For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. This Factor takes mitigating circumstances into account. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 3 0 obj
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. Do not deny the existence of bad facts. Ultimately, the more credible evidence you can provide to support your position the better. Sample 1: I have attached the material relied on to support this proposed removal. 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). We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ 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. 10 Ward v. U.S. The Douglas factors 8. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. This is because it puts you on notice of the penalties which is factor #9, below. Explanation, if relevant:
(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.Relevant? 49 0 obj
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The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Federal government websites often end in .gov or .mil. 3 Douglas v. Veterans Administration, 5 M.S.P.R. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. The notoriety of the offense or its impact upon the reputation of the agency; . This factor looks to the status of the employee. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. Specification #2. Relevant? Factor: Employee's . This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Discipline can range from letters of reprimand to short suspensions. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. But do not highlight them either. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. 2015). For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. 502, 508 (1994) (holding that because 31 U.S.C. 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 . If you want you can download and read the fullDouglas v. V.A. 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. 280 (1981)
These factors are used to explain why the penalty was chosen.