table of penalties douglas factors

Lets say you missed a deadline for an important assignment and management has proposed removal. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ This Douglas factor is not one of the more commonly cited Douglas factors. 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. Relevant? You neither came to work nor did you call in your absence. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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 more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. % The Douglas Factors: Disciplining employees is a fact of life. PDF The Douglas Factors - Energy This factor lends itself most to employees arguing for leniency in their case. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Factor 3: The employees past disciplinary record. We are currently not taking any new cases at this time. 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. You should not list a factor unless it is relevant. Do not deny the existence of bad facts. Cir. 280 (1981) These factors are used to explain why the penalty was chosen. Cir. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. endstream endobj startxref 51, 8 (2001). 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. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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? An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. If you are low level employee with no supervisory functions this factor should have some mitigating value. 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. Let me give you an example. A well presented reply to theproposed discipline can lead to substantial mitigation. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Douglas Factor Analysis. Relevant? <> 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Press Briefing by Press Secretary Karine Jean-Pierre Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 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. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army What kind of recovery can I get in my discrimination case? This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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 . -What kind of recovery can I get in my discrimination case? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. Check with your labor relations advisor. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Starr Wright USA is the nations leading provider of FEPLI. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Determining the Penalty - United States Merit Systems Protection Board Reston, VA 20190. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 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 See Douglas v. Veterans Administration, 5 M.S.P.R. 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. They likely held the same job you holdat some point in the past. 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. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). 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. These are known as Douglas factors. If you are looking for a representative, note that we are not taking on any cases at this time. 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. hb```f``2c`a`,c`@ r, ^Ma Other times it may mean providing some evidence to management to further support your position. PDF Douglas Factors - AFGE Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). unless application of the Douglas factors supports a penalty outside that range or if a statutory penalty applies such as willful misuse of a Government vehicle. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 11700 Plaza America Drive Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 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. Why can such behavior not be tolerated? Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Sample 1: I have attached the material relied on to support this proposed removal. What if I do not agree with managements analysisof a specific Douglas Factor? Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Obtain insurance protection for your career today. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees You need to look at the specifics of your case in light of the twelve factors. With responsibility comes greater obligation and scrutiny. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Has an employee been on the job for a long time? Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? 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? 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. Factor: Employee's . If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. posted June 9, 2003. Suite 305 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. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Managers must take an employees propensity for rehabilitation into account. The fourth Douglas Factor requires managers to take an employees past performance into account. Conclusions and vague statements do not hold much weight with third parties. PDF DOI Department Manual Table of Offenses and Penalties Berry & Berry PLLC. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. ^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. Postal Service, 634 F.3d 1274, 1282 (Fed. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 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. The 45 day deadline to file a discrimination claim, Federal EEOC, Fast Legal Answers: Federal Whistleblower Protection Act, an attorney with extensive experience practicing before the MSPB, Federalemployee's guide discipline cases and the MSPB, What every federal employee should know - The Douglas Factors. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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 . 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. 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. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. Employees who can appeal an adverse action to the Board have constitutional due process rights. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Can an employee take responsibility, correct their behavior and come back to the job? It is important to rebut these issues in a Douglas factor defense. 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. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Cir. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. PDF The Douglas Factors - United States Office of Personnel Management 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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. In many cases, managers act as deciding officials in discipline cases. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. The Douglas Factors - United States Office of Personnel Management Only relevant factors must be included. 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. Factor 10: Potential for the employees rehabilitation. 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 case of Douglas vs. Veterans Administration, 5 M.S.P.R. 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. PDF Douglas Factors In Depth - Branch 38 NALC The first time an employee is Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. In addition, actions . past performance). If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Cir. That translates into harsher penalties for repeat offenders. Relevant? 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 . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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. Before sharing sensitive information, make sure youre on a federal government site. (Use sample 1). 1999). The key is credibility. %%EOF Factor 1: 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. Don't force misconduct into a listed offense unless it accurately fits. 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. 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 . 72 0 obj <>stream Deciding officials should do a Douglas analysis in every case, except when Congress . 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. 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. %PDF-1.5 % xfg! If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios 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. If you want you can download and read the fullDouglas v. V.A. 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). But do not highlight them either. removal). The notoriety of the offense or its impact upon the reputation of the agency; . We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Also any awards or accolades the employee has would be mitigating in nature. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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.

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