table of penalties douglas factors

stream Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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. Your absence was not approved by your supervisor. 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. 3 0 obj If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. MSPB decision. Other times it may mean providing some evidence to management to further support your position. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Additionally, this factor looks at intent. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Remain calm, deferential and respectful at all times. Additionally, your coworkers have their own assignments. Why can such behavior not be tolerated? 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. %%EOF Before sharing sensitive information, make sure youre on a federal government site. 1985). 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. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. You should review the table to make sure that your discipline is in keeping with this table. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. Relevant? 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. You neither came to work nor did you call in your absence. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. While each case is different, seeking alternatives may be useful. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). It is important that you really highlightthefactors that are in your favor. 49 0 obj <> endobj Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. You neither came to work nor did you call in your absence. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Relevant? Factor 10: Potential for the employees rehabilitation. Consistency of the penalty with any table of penalties an agency may have . If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Factor 7: Consistency of the penalty with any applicable agency table of penalties. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. 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). Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. 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. 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. Internal Control Evaluation, page 21 . Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. For more information, visit WrightUSA.com. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. disciplinary situations. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. We are currently not taking any new cases at this time. 280, 290 (1981). But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Lets say you missed a deadline for an important assignment and management has proposed removal. See Douglas v. Veterans Administration, 5 M.S.P.R. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. Any replies submitted will be given full consideration. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. 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). 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. @b o $&F Sq70 # Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Your absence was not approved by your supervisor. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. See Douglas v. Veterans Administration, 5 M.S.P.R. <>>> 280, 305-06 (1981). Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. 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. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). A supervisor cannot just say it; he/she has to prove it. 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 . * Douglas v. Veterans Administration, 5 M.S.P.R. <> 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 . to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Relevant? 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. 8.Douglas Factor Analysis. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? What kind of recovery can I get in my discrimination case? -What kind of recovery can I get in my discrimination case? When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Heres what anyone who works for the federal government needs to know about the Douglas Factors. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. Employees who can appeal an adverse action to the Board have constitutional due process rights. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). Suite 305 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. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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 use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. What every federal employee facing discipline should be familiar with: The Douglas Factors. Do not deny the existence of bad facts. The idea is that discipline is meantto be corrective and progressive. 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 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. COPYRIGHT 2023. 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. This article covers the Douglas Factors. Managers and supervisors should properly document the employee misconduct. These factors are: 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. Which is why Federal Employee Professional Liability Insurance is critical. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Only those Douglas Factors relevant to each case need be considered. Your job as an employee is to support your position as best as you possibly can. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Cir. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Check with your labor relations advisor. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Offenses related to intoxicants. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. In theory, discipline should be both corrective and progressive. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . This Douglas factor is important and we use this argument in our representation of federal employees. This factor lends itself most to employees arguing for leniency in their case. 502, 508 (1994) (holding that because 31 U.S.C. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. With responsibility comes greater obligation and scrutiny. The Douglas Factors should be considered in selecting a penalty. Whether you use two charges in this case will depend upon the evidence available. Specification #2. 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. If you are low level employee with no supervisory functions this factor should have some mitigating value. Agency's table of penalties recognizes this severity in establishing ranges of penalties for A deciding official must consider specific factors in determining the reasonableness of the penalty. Postal Service, 634 F.3d 1274, 1279 (Fed. Ultimately, the more credible evidence you can provide to support your position the better. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). A well presented reply to theproposed discipline can lead to substantial mitigation. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Visit WrightUSA.com to start your policy! Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Govexec.com . Explanation, if relevant: (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. ^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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. The Douglas factors 8. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Regardless, try to avoid getting into an argument with management over factors. 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. Factor 3: The employees past disciplinary record. <>/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>> Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Misconduct is also considered more severe if it is done maliciously or for personal gain. Do you need a table of penalties in OPM? 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. This Factor takes mitigating circumstances into account. 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. 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. 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). They know the stress of a career, they know how life can be difficult. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. Managers must apply penalties that are similar to those imposed in like cases. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 51, 8 (2001). Can someone help me present the Douglas Factors to management? The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Reston, VA 20190. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. The reason(s) for this action is (are) specified below. 0 Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 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 ? 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. The Douglas Factors . Private sector cases are drastically different. The employee's job level and type of employment . There are certain standards of behavior and conduct expected of employees by our external and internal customers. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. Cir. Such cases call into question an employees ability to perform their specific job duties with integrity. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. The result will turn on the specifics of your case and the procedural posture as well. 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. See U.S. On (DATE), you were scheduled to report to work at (TIME). EAP can be reached by calling 1-800-XXX-XXXX. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? On (DATE), you were scheduled to report to work at (TIME). 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. However, if you properly argue this factor it can go a long way towards helping your case. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. 280 (1981) These factors are used to explain why the penalty was chosen. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The final Douglas Factor asks both manager and employee to consider alternative penalties. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. If the person signed for receipt of the letter include that information. 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Merit Systems Protection Board still follows today. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. %PDF-1.5 % Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. endobj They likely held the same job you holdat some point in the past.

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