table of penalties douglas factors

table of penalties douglas factors

In theory, discipline should be both corrective and progressive. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. The Douglas factors are: (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; Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Do you need a table of penalties in OPM? If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. The notoriety of the offense or its impact upon the reputation of the agency; . If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. The .gov means its official. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 1 What every federal employee facing discipline should be familiar with: The Douglas 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 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). 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. On (DATE), you were scheduled to report to work at (TIME). Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. See U.S. This has often been considered one of the most important Douglas factors by the MSPB. ^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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. This one is pretty self-explanatory. The first time an employee is PDF Douglas Factors In Depth - Branch 38 NALC Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. PDF The Douglas Factors - National Federation of Federal Employees 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. Only relevant factors must be included. 502, 508 (1994) (holding that because 31 U.S.C. Additionally, your coworkers have their own assignments. 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. The final Douglas Factor asks both manager and employee to consider alternative penalties. 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. Federal government websites often end in .gov or .mil. past performance). 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. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. 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. Misconduct and Discipline | U.S. Department of the Interior The Douglas factors are also referred to as mitigating factors. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. Cir. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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 . 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n endobj Sample 2: You have the right to review the material relied on to support this proposed removal. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. . This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. PDF Douglas Factors In Depth - Letter Carrier Connection When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. COPYRIGHT 2023. disciplinary situations. @b o $&F Sq70 # And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 1999). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ We need to specifically state why there is erosion of supervisory confidence. Ultimately, managers are people too. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . EachDouglas Factor can work for or against an employee depending on their specific case. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. If you have been disciplined before you will face harsher discipline going forward. The Douglas 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. 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. Managers must take an employees propensity for rehabilitation into account. Cir. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Sometimes management may misapply factors, or misconstrue them. PDF The Douglas Factors A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. The Table provides for more serious penalties for . Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Do not deny the existence of bad facts. Starr Wright USA is the nations leading provider of FEPLI. PDF Douglas Factors - AFGE * Douglas v. Veterans Administration, 5 M.S.P.R. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Plaza America You need to look at the specifics of your case in light of the twelve factors. 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). That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Federal agencies may take disciplinary action against employees who engage in misconduct. 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. You will be notified in writing of the final decision. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r These factors are the following: 1. Cir. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. The fourth Douglas Factor requires managers to take an employees past performance into account. The consistency of the penalty with any applicable agency table of penalties; 8. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 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. 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. To some extent, this is a subjective question. 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. 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. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Managers and supervisors should properly document the employee misconduct. A well presented reply to theproposed discipline can lead to substantial mitigation. Douglas Factor Analysis. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer 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. Factor: Notoriety and impact 3. When looking for an attorney make sure they have experience handling federal-sector employment cases. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. However, if you properly argue this factor it can go a long way towards helping your case. It is important to rebut these issues in a Douglas factor defense. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. What kind of recovery can I get in my discrimination case? Your job as an employee is to support your position as best as you possibly can. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Douglas Factor Mitigation for Federal Employees 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. WA 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. hbbd``b`:$ Hd V$D? The key is credibility. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. @ 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 . Cir. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. The Douglas Factors should be considered in selecting a penalty. 49 0 obj <> endobj Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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? Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. 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. Check with your labor relations advisor. 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. 9 Ward v. U.S. endobj 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. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Berry & Berry PLLC. Has an employee been on the job for a long time? A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. The Douglas Factors: What You Need to Know - Medium A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. You should not list a factor unless it is relevant. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? ALL RIGHTS RESERVED. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Specification #2. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Conclusions and vague statements do not hold much weight with third parties. stream Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. h[M+}LX,? 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). Cir. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. 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. Cir. Relevant? As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Factor 10: Potential for the employees rehabilitation. Whether you use two charges in this case will depend upon the evidence available. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. 2015). Yes___ No____This factor is one of the more technically difficult to apply. Did management send out a memo clarifying rules? Be clear, terse, and apologetic. 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. 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. This Douglas factor is important and we use this argument in our representation of federal employees. 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. On (DATE), you were scheduled to report to work at (TIME). (Use sample 1). 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 . Private sector cases are drastically different. Reston, VA 20190. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Table Of Penalties Douglas Factors Factor 3: The employees past disciplinary record. Determining the Penalty - United States Merit Systems Protection Board 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Did the employee have access to a handbook that detailed proper procedure and policy? 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. What is effect of the misconduct charged? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Cir. 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: (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? 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. %%EOF We are currently not taking any new cases at this time. Consistency of the penalty with any table of penalties an agency may have . Negligent or accidental incidents will be viewed more favorably than intentional acts. Cir. This table should be available to you as an employee. <>/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>>

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