table of penalties douglas factorstable of penalties douglas factors

280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). It is important to rebut these issues in a Douglas factor defense. %%EOF Postal Service, 634 F.3d 1274, 1279 (Fed. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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. 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. 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. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. <> 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. For example, a law enforcement officer is charged with enforcing laws. 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. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. This table should be available to you as an employee. 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). 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. 2278 0 obj <>stream Cir. 51, 8 (2001). However, if you properly argue this factor it can go a long way towards helping your case. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Managers must take an employees propensity for rehabilitation into account. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 4 0 obj In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. MSPB decision. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 9 Ward v. U.S. In addition, actions . Cir. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. h[M+}LX,? The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. 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). The nature and seriousness of the offense, and its relationship to the employee's . 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. However, despite the importance of these criteria, many employees arent familiar with them. %PDF-1.5 Only those Douglas Factors relevant to each case need be considered. If you list a factor you must explain why it is relevant. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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 . <>/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>> Cir. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. 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). Plaza America Cir. How does action taken promote the efficiency of the service? Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Sample: Specification #1. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. 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. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. See U.S. The first time an employee is 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. 502, 508 (1994) (holding that because 31 U.S.C. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? On (DATE), you were scheduled to report to work at (TIME). What kind of recovery can I get in my discrimination case? 1999). (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Which is why Federal Employee Professional Liability Insurance is critical. 280, 290 (1981). 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. past performance). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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 . Relevant? 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. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Remain calm, deferential and respectful at all times. Consistency of the penalty with any table of penalties an agency may have . hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& With responsibility comes greater obligation and scrutiny. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. Additionally, your coworkers have their own assignments. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Federal government websites often end in .gov or .mil. This Quick Start Guide covers the following Key Points: 1. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Negligent or accidental incidents will be viewed more favorably than intentional acts. 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 . 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P To some extent, this is a subjective question. The final Douglas Factor asks both manager and employee to consider alternative penalties. This has often been considered one of the most important Douglas factors by the MSPB. %PDF-1.6 % The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . This factor looks to the status of the employee. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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? Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Yes___ No____This factor is one of the more technically difficult to apply. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Be clear, terse, and apologetic. Any replies submitted will be given full consideration. However, the principle of "like penalties for like offenses" does not require perfect consistency. In some instances, you may want to request that management reconsider your case. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. That translates into harsher penalties for repeat offenders. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Other times it may mean providing some evidence to management to further support your position. Don't force misconduct into a listed offense unless it accurately fits. The result will turn on the specifics of your case and the procedural posture as well. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). 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. 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). Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Discipline can range from letters of reprimand to short suspensions. Managers and supervisors should properly document the employee misconduct. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Obtain insurance protection for your career today. ALL RIGHTS RESERVED. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. what extent, the "Douglas" factors come into play or how egregious the act was. Factor: Notoriety and impact 3. 3 0 obj Starr Wright USA is the nations leading provider of FEPLI. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. % All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . You will be notified in writing of the final decision. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 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. What every federal employee facing discipline should be familiar with: The Douglas Factors. These terms are used commonly in Douglas Factors application. Lets say you missed a deadline for an important assignment and management has proposed removal. Ultimately, the more credible evidence you can provide to support your position the better. 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. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. COPYRIGHT 2023. This Factor takes mitigating circumstances into account. A deciding official must consider specific factors in determining the reasonableness of the penalty. Specification #2. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 1 0 obj For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. Contact your employee relations advisor to get the information to fill in the blanks. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 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. But they may refuse to. Before sharing sensitive information, make sure youre on a federal government site. Federal agencies may take disciplinary action against employees who engage in misconduct. If you are low level employee with no supervisory functions this factor should have some mitigating value. . 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? 72 0 obj <>stream Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. xfg! endobj 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. 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. We are currently not taking any new cases at this time. 280 (1981) These factors are used to explain why the penalty was chosen. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Did management send out a memo clarifying rules? For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Factor 3: The employees past disciplinary record. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep 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. The site is secure. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. The notoriety of the offense or its impact upon the reputation of the agency; . * Douglas v. Veterans Administration, 5 M.S.P.R. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. 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. 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 . EAP can be reached by calling 1-800-XXX-XXXX. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. The national media picked the story up, and it was very detrimental to the agency. 8.Douglas Factor Analysis. Offenses related to intoxicants. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Discipline can range from letters of reprimand to short suspensions. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). How do you handle these aggravating factors? Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. ______________________________ __________________ (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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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.
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