table of penalties douglas factors

While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. Lets say you missed a deadline for an important assignment and management has proposed removal. 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. 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. Sample: Specification #1. <> 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. 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. . NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. The factors may mitigate or aggravate (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.Relevant? Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 1 What every federal employee facing discipline should be familiar with: 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. Berry & Berry PLLC. 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. 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 . An official website of the United States government. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. Other times it may mean providing some evidence to management to further support your position. Factor: Nature and seriousness 9. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Whether you use two charges in this case will depend upon the evidence available. 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. 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. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. The Douglas Factors . Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 4 0 obj Reston, VA 20190. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Factor 9: The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. The national media picked the story up, and it was very detrimental to the agency. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 51, 8 (2001). EachDouglas Factor can work for or against an employee depending on their specific case. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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? 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. 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. Relevant? Agency's table of penalties recognizes this severity in establishing ranges of penalties for That translates into harsher penalties for repeat offenders. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Private sector cases are drastically different. 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. 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; 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. We are currently not taking any new cases at this time. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Factor: Notoriety and impact 3. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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. past performance). 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. 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. 9 Ward v. U.S. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. Deciding officials should do a Douglas analysis in every case, except when Congress . Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. (Use sample 1). Do you need a table of penalties in OPM? consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . ALL RIGHTS RESERVED. 49 0 obj <> endobj 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. Federal government websites often end in .gov or .mil. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 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. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Such cases call into question an employees ability to perform their specific job duties with integrity. 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 . Let me give you an example. 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. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). A deciding official must consider specific factors in determining the reasonableness of the penalty. What every federal employee facing discipline should be familiar with: The Douglas Factors. %PDF-1.5 % This Douglas factor is not one of the more commonly cited Douglas factors. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 72 0 obj <>stream Just knowing the rules, however, cant fully protect you if a case should arise. -What kind of recovery can I get in my discrimination case? 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. endobj If this is impractical to do, use Sample 2. Discipline can range from letters of reprimand to short suspensions. Can an employee take responsibility, correct their behavior and come back to the job? Additionally, this factor looks at intent. 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. 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. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. endobj Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. If not, include delivery confirmation by the postal or delivery service. 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. 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. In many cases, managers act as deciding officials in discipline cases. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. . This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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. Don't force misconduct into a listed offense unless it accurately fits. If the person signed for receipt of the letter include that information. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). Additionally statements from managers or co-workers as to your ability and integrity will be helpful. Relevant? 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. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. However, if you properly argue this factor it can go a long way towards helping your case. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Why can such behavior not be tolerated? EAP can be reached by calling 1-800-XXX-XXXX. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. The site is secure. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. How does action taken promote the efficiency of the service? For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Can someone help me present the Douglas Factors to management? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. To some extent, this is a subjective question. 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. 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. 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. 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. But do not highlight them either. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. However, despite the importance of these criteria, many employees arent familiar with them. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. See Douglas v. Veterans Administration, 5 M.S.P.R. They likely held the same job you holdat some point in the past. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . For instance, did the employee have access to the table of penalties? Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Also any awards or accolades the employee has would be mitigating in nature. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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 . rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. When looking for an attorney make sure they have experience handling federal-sector employment cases. Discipline can range from letters of reprimand to short suspensions. h[M+}LX,? It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. Has an employee been on the job for a long time? 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). This table should be available to you as an employee. 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.

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