i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. For example, an allegation of dishonesty would be treated . Has an employee been on the job for a long time? 3 0 obj 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 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. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. But they may refuse to. ______________________________ __________________ (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. endobj Relevant? The Federal Starr is a publication by Starr Wright USA. On the surface, many incidents of misconduct may seem to be similar. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. a. 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. This means you should provide objective facts to support your arguments if you can. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. 7 Douglas v. Veterans Administration, 5 M.S.P.R. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). @ 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 . The Douglas Factors should be considered in selecting a penalty. Regardless, try to avoid getting into an argument with management over factors. -What kind of recovery can I get in my discrimination case? Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Cir. Be clear, terse, and apologetic. disciplinary situations. It is important to rebut these issues in a Douglas factor defense. 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). Deciding officials should do a Douglas analysis in every case, except when Congress . A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. The employee's job level and type of employment . On (DATE), you were scheduled to report to work at (TIME). Heres what anyone who works for the federal government needs to know about the Douglas Factors. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 2 0 obj This factor is generally an afterthought for both management and employees. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Suite 305 hb```f``2c`a`,c`@ r, ^Ma EachDouglas Factor can work for or against an employee depending on their specific case. 51, 8 (2001). Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. You neither came to work nor did you call in your absence. 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. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____This factor is one of the more technically difficult to apply. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. The national media picked the story up, and it was very detrimental to the agency. How does action taken promote the efficiency of the service? xfg! Any personal issues going on around the time of the misconduct should be brought to the attention of management. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz A well presented reply to theproposed discipline can lead to substantial mitigation. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. There are certain standards of behavior and conduct expected of employees by our external and internal customers. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Consistency of the penalty with any applicable agency table of penalties; 8. Let me give you an example. When looking for an attorney make sure they have experience handling federal-sector employment cases. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The idea is that discipline is meantto be corrective and progressive. If you are looking for a representative, note that we are not taking on any cases at this time. By William N. Rudman . The Douglas Factors . 1 0 obj 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the 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 reason(s) for this action is (are) specified below. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). This is because it puts you on notice of the penalties which is factor #9, below. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 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. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. If this is impractical to do, use Sample 2. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position.
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