table of penalties douglas factorstable of penalties douglas factors

Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 10 Ward v. U.S. EAP can be reached by calling 1-800-XXX-XXXX. 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. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Obtain insurance protection for your career today. 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. 49 0 obj <> endobj Which is why Federal Employee Professional Liability Insurance is critical. Sample 1: I have attached the material relied on to support this 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. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. This one is pretty self-explanatory. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. If you are looking for a representative, note that we are not taking on any cases at this time. If this is impractical to do, use Sample 2. Cir. Additionally, this factor looks at intent. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 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. 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 national media picked the story up, and it was very detrimental to the agency. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). If you want you can download and read the fullDouglas v. V.A. 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? 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. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. Cir. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. Note. Cir. 280, 302 (1981). Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). The employee's job level and type of employment . Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Sample: Specification #1. The reason(s) for this action is (are) specified below. affidavits, performance ratings, SF-50s, letters of commendation) for the 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. Check with your labor relations advisor. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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. Your absence was not approved by your supervisor. 2 0 obj Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. The idea is that discipline is meantto be corrective and progressive. That translates into harsher penalties for repeat offenders. 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. 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. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. The consistency of the penalty with any applicable agency table of penalties; 8. ^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. 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. It is more often used to attempt to aggravate a disciplinary penalty. Ultimately, managers are people too. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. Factor: Notoriety and impact 3. %PDF-1.5 A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. In theory, discipline should be both corrective and progressive. How do you handle these aggravating factors? EachDouglas Factor can work for or against an employee depending on their specific case. 1 What every federal employee facing discipline should be familiar with: The 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. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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. 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. h[M+}LX,? Do not deny the existence of bad facts. The result will turn on the specifics of your case and the procedural posture as well. 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? The Douglas Factors . (Use sample 1). This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. 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. 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. You will be notified in writing of the final decision. 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. For example, a law enforcement officer is charged with enforcing laws. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 7 Douglas v. Veterans Administration, 5 M.S.P.R. By William N. Rudman . These 12 factors play a key role in the outcome of federal employee discipline cases. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Cir. Discipline can range from letters of reprimand to short suspensions. 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. However, if you properly argue this factor it can go a long way towards helping your case. 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. Conclusions and vague statements do not hold much weight with third parties. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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 . Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 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. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. a. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Sometimes management may misapply factors, or misconstrue them. %PDF-1.6 % If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. 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. endstream endobj startxref Can an employee take responsibility, correct their behavior and come back to the job? Only those Douglas Factors relevant to each case need be considered. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Just knowing the rules, however, cant fully protect you if a case should arise. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The site is secure. 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. This article covers the Douglas Factors. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Deciding officials should do a Douglas analysis in every case, except when Congress . If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Specification #2. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. With responsibility comes greater obligation and scrutiny. 1999). 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 . This has often been considered one of the most important Douglas factors by the MSPB. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. Be clear, terse, and apologetic. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. 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. The Douglas Factors: Disciplining employees is a fact of life. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their 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. It is important to rebut these issues in a Douglas factor defense. What kind of recovery can I get in my discrimination case? You should review the table to make sure that your discipline is in keeping with this table. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Factor: Consistency with table of penalties 2. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. For example, an allegation of dishonesty would be treated . Has an employee been on the job for a long time? Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. %%EOF It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Any personal issues going on around the time of the misconduct should be brought to the attention of management. This factor looks to the status of the employee. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 1999). In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Plaza America In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Managers must take an employees propensity for rehabilitation into account. 280, 290 (1981). * Douglas v. Veterans Administration, 5 M.S.P.R. Postal Service, 634 F.3d 1274, 1282 (Fed. 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; 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. Cir. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Employees who can appeal an adverse action to the Board have constitutional due process rights. ALL RIGHTS RESERVED. 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. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. However, the principle of "like penalties for like offenses" does not require perfect consistency. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Managers must apply penalties that are similar to those imposed in like cases. 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. Cir. The notoriety of the offense or its impact upon the reputation of the agency; . @ 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 .
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