table of penalties douglas factors table of penalties douglas factors

endobj If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Agency's table of penalties recognizes this severity in establishing ranges of penalties for h[M+}LX,? This factor lends itself most to employees arguing for leniency in their case. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. The reason(s) for this action is (are) specified below. On (DATE), you were scheduled to report to work at (TIME). 4 0 obj ______________________________ __________________ (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. Factor: Employee's . It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. What is effect of the misconduct charged? A well presented reply to theproposed discipline can lead to substantial mitigation. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. Cir. Cir. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 3 0 obj If you list a factor you must explain why it is relevant. 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. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. When looking for an attorney make sure they have experience handling federal-sector employment cases. It is important that you really highlightthefactors that are in your favor. An official website of the United States government. past performance). 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Misconduct is also considered more severe if it is done maliciously or for personal gain. Obtain insurance protection for your career today. xfg! Plaza America The Table provides for more serious penalties for . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Berry & Berry PLLC. %PDF-1.5 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. 5 Douglas v. Veterans Administration, 5 M.S.P.R. The employee's job level and type of employment . The Douglas factors are also referred to as mitigating factors. Regardless, try to avoid getting into an argument with management over factors. They likely held the same job you holdat some point in the past. 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. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ The nature and seriousness of the offense, and its relationship to the employee's . This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 72 0 obj <>stream Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The more notorious the offense you commit the more severe the discipline you will face. Postal Service, 634 F.3d 1274, 1282 (Fed. These are known as Douglas factors. Cir. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Just knowing the rules, however, cant fully protect you if a case should arise. Discipline can range from letters of reprimand to short suspensions. 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. Federal agencies may take disciplinary action against employees who engage in misconduct. While each case is different, seeking alternatives may be useful. 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. Note. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. With responsibility comes greater obligation and scrutiny. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Also any awards or accolades the employee has would be mitigating in nature. . Has an employee been on the job for a long time? Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 8.Douglas Factor Analysis. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. !%7K81E8zi. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. You need to look at the specifics of your case in light of the twelve factors. 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. Federal government websites often end in .gov or .mil. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. However, the principle of "like penalties for like offenses" does not require perfect consistency. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Similar offenses can be used to guide penalty selection. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (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. Whether you use two charges in this case will depend upon the evidence available. 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. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. Additionally, this factor looks at intent. 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 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 . 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; . Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. endobj 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. 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 . 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. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Your absence was not approved by your supervisor. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 2015). See Douglas v. Veterans Administration, 5 M.S.P.R. Don't force misconduct into a listed offense unless it accurately fits. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Which is why Federal Employee Professional Liability Insurance is critical. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 2012) (internal citations and punctuation omitted). Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. Postal Service, 634 F.3d 1274, 1279 (Fed. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter On (DATE), you were scheduled to report to work at (TIME). The first time an employee is At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Factor 3: The employees past disciplinary record. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 2278 0 obj <>stream Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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. Internal Control Evaluation, page 21 . 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. 280, 305-06 (1981). The Federal Starr is a publication by Starr Wright USA. Can an employee take responsibility, correct their behavior and come back to the job? <>/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>> A deciding official must consider specific factors in determining the reasonableness of the penalty. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. 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. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Additionally, your coworkers have their own assignments. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. But they may refuse to. Ultimately, managers are people too. Employees who can appeal an adverse action to the Board have constitutional due process rights. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. 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. 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 fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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 . 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. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. affidavits, performance ratings, SF-50s, letters of commendation) for the record. (Use sample 1). One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Relevant? accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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 . Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? %PDF-1.5 % 3 Douglas v. Veterans Administration, 5 M.S.P.R. <> Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty.