table of penalties 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. endstream endobj startxref These are known as Douglas factors. The .gov means its official. <> If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Your absence was not approved by your supervisor. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. This has often been considered one of the most important Douglas factors by the MSPB. Discipline can range from letters of reprimand to short suspensions. Relevant? How do you handle these aggravating factors? If you list a factor you must explain why it is relevant. 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. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. The Federal Starr is a publication by Starr Wright USA. But do not highlight them either. 10 Ward v. U.S. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). It is important to rebut these issues in a Douglas factor defense. Cir. 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. 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. 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:#/ 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. Employees who can appeal an adverse action to the Board have constitutional due process rights. Factor 3: The employees past disciplinary record. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. Relevant? 1 0 obj EachDouglas Factor can work for or against an employee depending on their specific case. 3 0 obj This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. (Use sample 1). 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. We need to specifically state why there is erosion of supervisory confidence. 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). Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Explanation, if relevant: (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.Relevant? EAP can be reached by calling 1-800-XXX-XXXX. Check with your labor relations advisor. The Douglas Factors . If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. The key is credibility. Govexec.com . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Cir. Similar offenses can be used to guide penalty selection. You will be notified in writing of the final decision. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Cir. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. See Douglas v. Veterans Administration, 5 M.S.P.R. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 280, 290 (1981). the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Whether you use two charges in this case will depend upon the evidence available. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios The final Douglas Factor asks both manager and employee to consider alternative penalties. . What is effect of the misconduct charged? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. What kind of recovery can I get in my discrimination case? a. Relevant? 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. In theory, discipline should be both corrective and progressive. Any personal issues going on around the time of the misconduct should be brought to the attention of management. 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 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. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 2015). 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. However, the principle of "like penalties for like offenses" does not require perfect consistency. 280, 305-06 (1981). Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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. h[M+}LX,? hb```f``2c`a`,c`@ r, ^Ma In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. For example, an allegation of dishonesty would be treated . What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Specification #2. COPYRIGHT 2023. 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. Yes___ No____This factor is one of the more technically difficult to apply. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. See Douglas v. Veterans Administration, 5 M.S.P.R. This Quick Start Guide covers the following Key Points: 1. However, if you properly argue this factor it can go a long way towards helping your case. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Heres what anyone who works for the federal government needs to know about the Douglas Factors. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. You need to look at the specifics of your case in light of the twelve factors. Federal government websites often end in .gov or .mil. Managers must take an employees propensity for rehabilitation into account. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 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. 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 . Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. This factor is generally an afterthought for both management and employees. Berry & Berry PLLC. This is because it puts you on notice of the penalties which is factor #9, below. Can someone help me present the Douglas Factors to management? Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. On the surface, many incidents of misconduct may seem to be similar. If you have been disciplined before you will face harsher discipline going forward. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. For more information, visit WrightUSA.com. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. Other times it may mean providing some evidence to management to further support your position. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Sample 1: I have attached the material relied on to support this proposed removal. There are certain standards of behavior and conduct expected of employees by our external and internal customers. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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 Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. 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 potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 0 Specific evidence/testimony as to why an employee can no longer be trusted is critical. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. You should not list a factor unless it is relevant. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 280 (1981) These factors are used to explain why the penalty was chosen. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. If the person signed for receipt of the letter include that information. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 280, 302 (1981). Factor 7: Consistency of the penalty with any applicable agency table of penalties. The site is secure. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for With responsibility comes greater obligation and scrutiny. 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. It is important that you really highlightthefactors that are in your favor. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 11700 Plaza America Drive 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. 8.Douglas Factor Analysis. How the factors will be applied in your disciplinary case depends on the specifics of 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Relevant? Postal Service, 634 F.3d 1274, 1279 (Fed. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Private sector cases are drastically different. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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.