table of penalties douglas factors table of penalties douglas factors

This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The reason(s) for this action is (are) specified below. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Agency's table of penalties recognizes this severity in establishing ranges of penalties for In some instances this may mean pointing out points of analysis or facts to management if they are unaware. But do not highlight them either. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Can someone help me present the Douglas Factors to management? On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Cir. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. The nature and seriousness of the offense, and its relation to the employees 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 employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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 potential for the employees rehabilitation; 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; and. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. The Douglas factors 8. 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. If the person signed for receipt of the letter include that information. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. They know the stress of a career, they know how life can be difficult. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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. %PDF-1.6 % However, despite the importance of these criteria, many employees arent familiar with them. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. hb```f``2c`a`,c`@ r, ^Ma @ 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 . Only relevant factors must be included. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 2278 0 obj <>stream An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 1 0 obj Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. Factor: Employee'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 determining an appropriate . Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. This Quick Start Guide covers the following Key Points: 1. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. For instance, did the employee have access to the table of penalties? The Douglas Factors: Disciplining employees is a fact of life. 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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. -What kind of recovery can I get in my discrimination case? The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. A well presented reply to theproposed discipline can lead to substantial mitigation. See Douglas v. Veterans Administration, 5 M.S.P.R. Douglas Factor Analysis. Cir. Internal Control Evaluation, page 21 . 11700 Plaza America Drive The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Relevant? COPYRIGHT 2023. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Relevant? 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. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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 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. 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. 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. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Before sharing sensitive information, make sure youre on a federal government site. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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 %PDF-1.5 % For more information, visit WrightUSA.com. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. 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. %PDF-1.5 A mitigating factor is one that suggests the discipline be mitigated, or lowered. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Whether you use two charges in this case will depend upon the evidence available. You should not list a factor unless it is relevant. Just knowing the rules, however, cant fully protect you if a case should arise. past performance). A Table of Penalties is a list of . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). For example, a law enforcement officer is charged with enforcing laws. Sample 1: I have attached the material relied on to support this proposed removal. 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? Private sector cases are drastically different. 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. See U.S. This means you should provide objective facts to support your arguments if you can. <> At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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 Consistency of the penalty with any table of penalties an agency may have . Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. If you have been disciplined before you will face harsher discipline going forward. 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. This article covers the Douglas Factors. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. On (DATE), you were scheduled to report to work at (TIME). 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. 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 . 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. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. The national media picked the story up, and it was very detrimental to the agency. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. 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. If this is impractical to do, use Sample 2. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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 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; . endobj They likely held the same job you holdat some point in the past. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. The site is secure. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. In theory, discipline should be both corrective and progressive. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 280, 305-06 (1981). % 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. 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. This has often been considered one of the most important Douglas factors by the MSPB. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Factor 10: Potential for the employees rehabilitation. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Federal government websites often end in .gov or .mil. Yes___ No____This factor is one of the more technically difficult to apply. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 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. 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. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. <> If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Managers must take an employees propensity for rehabilitation 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. But they may refuse to. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 10 Ward v. U.S. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Discipline can range from letters of reprimand to short suspensions. Management has likely even required you to review the table and sign a form asserting your knowledge of it. How do you handle these aggravating factors? Regardless, try to avoid getting into an argument with management over factors. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Berry & Berry PLLC. 280, 290 (1981). Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Obtain insurance protection for your career today. Cir. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Don't force misconduct into a listed offense unless it accurately fits. 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. A deciding official must consider specific factors in determining the reasonableness of the penalty. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. . In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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 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? removal). Be clear, terse, and apologetic. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct.