table of penalties douglas factors table of penalties douglas factors

The Douglas Factors: Disciplining employees is a fact of life. Misconduct is also considered more severe if it is done maliciously or for personal gain. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. 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. These factors are: 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? For more information, visit WrightUSA.com. This one is pretty self-explanatory. 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 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Cir. 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Reston, VA 20190. 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. You should not list a factor unless it is relevant. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Managers must take an employees propensity for rehabilitation into account. Specific evidence/testimony as to why an employee can no longer be trusted is critical. See, e.g., Semans v. Department of the Interior, 62 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 . Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. PDF The Douglas Factors - Energy This Quick Start Guide covers the following Key Points: 1. <> 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 Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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). 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. 280 (1981) These factors are used to explain why the penalty was chosen. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. The .gov means its official. This article covers the Douglas Factors. The Douglas factors 8. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Douglas Factors for Federal Employees - berrylegal xfg! However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. 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 (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. @ 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 . 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. When looking for an attorney make sure they have experience handling federal-sector employment cases. 1999). Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). This factor is generally an afterthought for both management and employees. Why can such behavior not be tolerated? 2278 0 obj <>stream Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. COPYRIGHT 2023. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( endobj Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Did the employee have access to a handbook that detailed proper procedure and policy? 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. They likely held the same job you holdat some point in the past. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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). 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. For instance, did the employee have access to the table of penalties? Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 280 (1981) These factors are used to explain why the penalty was chosen. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. But do not highlight them either. 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. Whether you use two charges in this case will depend upon the evidence available. 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. 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. Ultimately, the more credible evidence you can provide to support your position the better. Negligent or accidental incidents will be viewed more favorably than intentional acts. 2 0 obj In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. past performance). 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. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Internal Control Evaluation, page 21 . Relevant? %PDF-1.6 % 8.Douglas Factor Analysis. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 2015). Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Factor: Consistency with table of penalties 2. It is important that you really highlightthefactors that are in your favor. 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 . 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). Offenses related to intoxicants. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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? 502, 508 (1994) (holding that because 31 U.S.C. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Let me give you an example. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Your job as an employee is to support your position as best as you possibly can. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. 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? 280 (1981). Factor: Employee's . 72 0 obj <>stream 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. . What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. removal). 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. Contact your employee relations advisor to get the information to fill in the blanks. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Cir. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). Factor 10: Potential for the employees rehabilitation. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. hb```f``2c`a`,c`@ r, ^Ma These 12 factors play a key role in the outcome of federal employee discipline cases. posted June 9, 2003. They know the stress of a career, they know how life can be difficult. Such cases call into question an employees ability to perform their specific job duties with integrity. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. 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. 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. How does action taken promote the efficiency of the service? The Table provides for more serious penalties for . Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Just knowing the rules, however, cant fully protect you if a case should arise. The Douglas Factors should be considered in selecting a penalty. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. Federal agencies may take disciplinary action against employees who engage in misconduct. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Relevant? Ultimately, managers are people too. 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? It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. WA If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 5 Douglas v. Veterans Administration, 5 M.S.P.R. If you are looking for a representative, note that we are not taking on any cases at this time. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Management has likely even required you to review the table and sign a form asserting your knowledge of it. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. 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. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. What if I do not agree with managements analysisof a specific Douglas Factor? 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. Determining the Penalty - United States Merit Systems Protection Board The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. Relevant? 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. For example, a law enforcement officer is charged with enforcing laws. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 1999). The consistency of the penalty with any applicable agency table of penalties; 8. Govexec.com . 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. These are known as Douglas factors. For example, an allegation of dishonesty would be treated . 51, 8 (2001). Factor: Notoriety and impact 3. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. 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. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? These factors are the following: 1. 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? The Douglas Factors: What You Need to Know - Medium Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. generadores de diesel precios MSPB decision. Postal Service, 634 F.3d 1274, 1279 (Fed. 4 0 obj Plaza America The result will turn on the specifics of your case and the procedural posture as well. Table Of Penalties Douglas Factors 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 280, 290 (1981). 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 . These terms are used commonly in Douglas Factors application. While each case is different, seeking alternatives may be useful. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. affidavits, performance ratings, SF-50s, letters of commendation) for the record. If you list a factor you must explain why it is relevant. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone).