table of penalties douglas factors

The employee's job level and type of employment . This Douglas factor is important and we use this argument in our representation of federal employees. They know the stress of a career, they know how life can be difficult. h[M+}LX,? This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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 . If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. If the person signed for receipt of the letter include that information. EAP can be reached by calling 1-800-XXX-XXXX. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. 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 Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. In some instances, you may want to request that management reconsider your case. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. You should review the table to make sure that your discipline is in keeping with this table. 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. What if I do not agree with managements analysisof a specific Douglas Factor? The result will turn on the specifics of your case and the procedural posture as well. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. This Quick Start Guide covers the following Key Points: 1. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Douglas Factor Analysis. Employees who can appeal an adverse action to the Board have constitutional due process rights. How the factors will be applied in your disciplinary case depends on the specifics of your case. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream 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. 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. The Douglas Factors should be considered in selecting a penalty. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. It is important to rebut these issues in a Douglas factor defense. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>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. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. past performance). 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. 280 (1981) These factors are used to explain why the penalty was chosen. A Table of Penalties is a list of . 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. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 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. 1999). The notoriety of the offense or its impact upon the reputation of the agency; . Note. Consistency of the penalty with any applicable agency table of penalties; 8. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. xfg! 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, if you properly argue this factor it can go a long way towards helping your case. Be clear, terse, and apologetic. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. For instance, did the employee have access to the table of penalties? the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). You should not list a factor unless it is relevant. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Don't force misconduct into a listed offense unless it accurately fits. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 280, 305-06 (1981). As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Relevant? 1999). MSPB decision. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. This Douglas factor is not one of the more commonly cited Douglas factors. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. 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. Cir. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. While each case is different, seeking alternatives may be useful. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. The Douglas Factors . 502, 508 (1994) (holding that because 31 U.S.C. This one is pretty self-explanatory. For example, a law enforcement officer is charged with enforcing laws. 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). These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. %PDF-1.5 Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 4 0 obj 280, 302 (1981). For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. These are known as Douglas factors. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. The national media picked the story up, and it was very detrimental to the agency. Also any awards or accolades the employee has would be mitigating in nature. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Govexec.com . However, the principle of "like penalties for like offenses" does not require perfect consistency. Postal Service, 634 F.3d 1274, 1282 (Fed. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. !%7K81E8zi. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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. 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. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Postal Service, 634 F.3d 1274, 1279 (Fed. 9 Ward v. U.S. The .gov means its official. If you list a factor you must explain why it is relevant. Check with your labor relations advisor. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. With responsibility comes greater obligation and scrutiny. Did the employee have access to a handbook that detailed proper procedure and policy? %PDF-1.6 % 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. Remain calm, deferential and respectful at all times. 8.Douglas Factor Analysis. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. These 12 factors play a key role in the outcome of federal employee discipline cases. Obtain insurance protection for your career today. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. We need to specifically state why there is erosion of supervisory confidence. 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 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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? This factor looks to the status of the employee. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Plaza America Factor 10: Potential for the employees rehabilitation. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. Before sharing sensitive information, make sure youre on a federal government site. 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? Relevant? 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). The Table provides for more serious penalties for . Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 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. hbbd``b`:$ Hd V$D? A knowledge of the Douglas Factors is helpful for both federal employees and managers. Your absence was not approved by your supervisor. The more notorious the offense you commit the more severe the discipline you will face. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. This table should be available to you as an employee. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. 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. Factor 3: The employees past disciplinary record. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over.

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