table of penalties douglas factors table of penalties 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. 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? Discipline can range from letters of reprimand to short suspensions. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. @b o $&F Sq70 # U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. ^K[i>P+hvSbfpNK"ly(O$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 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. 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. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Consistency of the penalty with any table of penalties an agency may have . 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. 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 reason(s) for this action is (are) specified below. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Discipline can range from letters of reprimand to short suspensions. 9 Ward v. U.S. The fourth Douglas Factor requires managers to take an employees past performance into account. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. PDF Committee on Oversight and Government Reform U.S. House of 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. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ The Table provides for more serious penalties for . Visit WrightUSA.com to start your policy! 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The final Douglas Factor asks both manager and employee to consider alternative penalties. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Factor 10: Potential for the employees rehabilitation. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Private sector cases are drastically different. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. PDF Committee on Oversight and Government Reform U.S. House of This factor lends itself most to employees arguing for leniency in their case. Relevant? You should not list a factor unless it is relevant. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may PDF Chapter 4. Hud Table of Offenses and Penalties 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. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Do they have a positive track record? Douglas Factors in Federal Employment - InformedFED What kind of recovery can I get in my discrimination case? endobj Douglas Factors - Postal Reporter Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. Relevant? The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Sample 2: You have the right to review the material relied on to support this proposed removal. 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 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. Douglas Factor Analysis. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. They know the stress of a career, they know how life can be difficult. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 10 Ward v. U.S. 4 0 obj In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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. This has often been considered one of the most important Douglas factors by the MSPB. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Cir. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Sample 1: I have attached the material relied on to support this proposed removal. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 2012) (internal citations and punctuation omitted). In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. generadores de diesel precios Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com All other penalty determinations should undergo thorough reasoning under the Douglas Factors. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. 280, 305-06 (1981). Additionally statements from managers or co-workers as to your ability and integrity will be helpful. The site is secure. 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. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Sample: Specification #1. 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. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? The first time an employee is Postal Service, 634 F.3d 1274, 1279 (Fed. 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. (Use sample 1). 280 (1981) These factors are used to explain why the penalty was chosen. Regardless, try to avoid getting into an argument with management over 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 . 1985). Don't force misconduct into a listed offense unless it accurately fits. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. Did management send out a memo clarifying rules? Check with your labor relations advisor. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 280, 302 (1981). 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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 . 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# The Douglas Factors: What You Need to Know - Medium 72 0 obj <>stream Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter a. Specific evidence/testimony as to why an employee can no longer be trusted is critical. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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. Additionally, this factor looks at intent. In addition, actions . Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. %PDF-1.5 Suite 305 Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Agency's table of penalties recognizes this severity in establishing ranges of penalties for past performance). With responsibility comes greater obligation and scrutiny. 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Let me give you an example. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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). Has an employee been on the job for a long time? Factor 3: The employees past disciplinary record. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! What every federal employee facing discipline should be familiar with: The Douglas Factors. %PDF-1.6 % Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. . If not, include delivery confirmation by the postal or delivery service. Table Of Penalties Douglas Factors For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. A well presented reply to theproposed discipline can lead to substantial mitigation. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Starr Wright USA is the nations leading provider of FEPLI. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 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. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. This Factor takes mitigating circumstances into account. Obtain insurance protection for your career today. 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. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. If you list a factor you must explain why it is relevant. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 280 (1981). A Table of Penalties is a list of . 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. That translates into harsher penalties for repeat offenders. 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. 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. 49 0 obj <> endobj For example, a law enforcement officer is charged with enforcing laws. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. You need to look at the specifics of your case in light of the twelve factors. The key is credibility. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Only relevant factors must be included. The result will turn on the specifics of your case and the procedural posture as well. To some extent, this is a subjective question. 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. Note. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Managers must apply penalties that are similar to those imposed in like cases. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 2 0 obj Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. hbbd``b`:$ Hd V$D? Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n The consistency of the penalty with any applicable agency table of penalties; 8. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. If you want you can download and read the fullDouglas v. V.A. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. ______________________________ __________________ (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. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. We need to specifically state why there is erosion of supervisory confidence. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. % 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. The Douglas Factors explained, the keys to a discipline case - Ivancie Law past performance). 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. 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:#/ Relevant? 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. In many cases, managers act as deciding officials in discipline cases. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. 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. 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 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. 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. Merit Systems Protection Board still follows today. A knowledge of the Douglas Factors is helpful for both federal employees and managers. An official website of the United States government. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Factor: Employee's . We are currently not taking any new cases at this time. Factor: Consistency with table of penalties 2. A supervisor cannot just say it; he/she has to prove it. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). The Douglas Factors - Melville Johnson 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. 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. Misconduct is also considered more severe if it is done maliciously or for personal gain. Offenses related to intoxicants. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others?