table of penalties douglas factors

Regardless, try to avoid getting into an argument with management over factors. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. 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. COPYRIGHT 2023. How does action taken promote the efficiency of the service? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Internal Control Evaluation, page 21 . affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. The Douglas factors are also referred to as mitigating factors. You should not list a factor unless it is relevant. 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. Cir. What if I do not agree with managements analysisof a specific Douglas Factor? One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 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. 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. 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). Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Cir. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Also any awards or accolades the employee has would be mitigating in nature. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. The Federal Starr is a publication by Starr Wright USA. The right to answer orally does not include the right to a formal hearing with examination of witnesses. This table should be available to you as an employee. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. On (DATE), you were scheduled to report to work at (TIME). 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. Similar offenses can be used to guide penalty selection. 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. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. You need to look at the specifics of your case in light of the twelve factors. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Private sector cases are drastically different. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. hbbd``b`:$ Hd V$D? Discipline can range from letters of reprimand to short suspensions. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. removal). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Cir. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. stream This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Your job as an employee is to support your position as best as you possibly can. past performance). Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Factor: Employee's . Just knowing the rules, however, cant fully protect you if a case should arise. 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 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 . Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. Merit Systems Protection Board still follows today. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Offenses related to intoxicants. 72 0 obj <>stream With responsibility comes greater obligation and scrutiny. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 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. How do you handle these aggravating factors? Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 2015). If you are looking for a representative, note that we are not taking on any cases at this time. 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. A mitigating factor is one that suggests the discipline be mitigated, or lowered. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. 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. We need to specifically state why there is erosion of supervisory confidence. %PDF-1.5 % If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. Relevant? Whether you use two charges in this case will depend upon the evidence available. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Obtain insurance protection for your career today. Specification #2. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Managers must apply penalties that are similar to those imposed in like cases. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. 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. 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 accruing multiple instances of discipline can lead you on the fast track to removal from federal service. hb```f``2c`a`,c`@ r, ^Ma What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 2 0 obj You should review the table to make sure that your discipline is in keeping with this table. It is important that you really highlightthefactors that are in your favor. Starr Wright USA is the nations leading provider of FEPLI. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . This factor lends itself most to employees arguing for leniency in their case. Contact your employee relations advisor to get the information to fill in the blanks. 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. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Other times it may mean providing some evidence to management to further support your position. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. You will be notified in writing of the final decision. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. 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. This is because it puts you on notice of the penalties which is factor #9, below. Note. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Don't force misconduct into a listed offense unless it accurately fits. Cir. endobj The Douglas Factors include: 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. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Your absence was not approved by your supervisor. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. %PDF-1.5 Do they have a positive track record? 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. These terms are used commonly in Douglas Factors application. An official website of the United States government. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. Additionally, your coworkers have their own assignments. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 10 Ward v. U.S. 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? 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. 51, 8 (2001). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. This factor looks to the status of the employee. Ultimately, managers are people too. Postal Service, 634 F.3d 1274, 1282 (Fed. 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). Relevant? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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? Relevant? The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining an appropriate . Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. If not, include delivery confirmation by the postal or delivery service. 2278 0 obj <>stream 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. 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). Can someone help me present the Douglas Factors to management? 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. The nature and seriousness of the offense, and its relationship to the employee's . If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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 neither came to work nor did you call in your absence. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. posted June 9, 2003. Consistency of the penalty with any applicable agency table of penalties; 8. 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 ? 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). In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. Federal agencies may take disciplinary action against employees who engage in misconduct. Your absence was not approved by your supervisor. 49 0 obj <> endobj An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 7 Douglas v. Veterans Administration, 5 M.S.P.R. endobj 1 0 obj By William N. Rudman . 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. <> 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. 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. 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. This Quick Start Guide covers the following Key Points: 1. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. When looking for an attorney make sure they have experience handling federal-sector employment cases.