table of penalties douglas factors

All other penalty determinations should undergo thorough reasoning under the Douglas Factors. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Note. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz PDF The Douglas Factors In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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. 1985). The Douglas Factors explained, the keys to a discipline case - Ivancie Law Factor 7: Consistency of the penalty with any applicable agency table of penalties. Similar offenses can be used to guide penalty selection. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Agency's table of penalties recognizes this severity in establishing ranges of penalties for This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. It is important that you really highlightthefactors that are in your favor. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Your job as an employee is to support your position as best as you possibly can. !%7K81E8zi. The Douglas Factors - United States Office of Personnel Management endobj 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. This one is pretty self-explanatory. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. These 12 factors play a key role in the outcome of federal employee discipline cases. Relevant? See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. We are currently not taking any new cases at this time. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. % Factor 11: Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. The first time an employee is This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. Conclusions and vague statements do not hold much weight with third parties. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. See U.S. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. If you have been disciplined before you will face harsher discipline going forward. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. 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 Additionally, your coworkers have their own assignments. 2015). . xfg! When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Deciding officials should do a Douglas analysis in every case, except when Congress . NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. For example, an allegation of dishonesty would be treated . generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios To some extent, this is a subjective question. 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). 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 . 0 If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 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. 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. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? The right to answer orally does not include the right to a formal hearing with examination of witnesses. You need to look at the specifics of your case in light of the twelve factors. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 7 Douglas v. Veterans Administration, 5 M.S.P.R. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . endobj Sample 1: I have attached the material relied on to support this proposed removal. 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. what extent, the "Douglas" factors come into play or how egregious the act was. Managers must take an employees propensity for rehabilitation into account. Cir. 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. Suite 305 ^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. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n However, if you properly argue this factor it can go a long way towards helping your case. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. The national media picked the story up, and it was very detrimental to the agency. Cir. 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. By William N. Rudman . the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 280 (1981) These factors are used to explain why the penalty was chosen. The idea is that discipline is meantto be corrective and progressive. Factor: Notoriety and impact 3. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Specification #2. 3 0 obj Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Your absence was not approved by your supervisor. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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. 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. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. hbbd``b`:$ Hd V$D? PDF Chapter 4. Hud Table of Offenses and Penalties Relevant? 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. . %PDF-1.5 Consistency of the penalty with any table of penalties an agency may have . 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 . In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. COPYRIGHT 2023. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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 Press Briefing by Press Secretary Karine Jean-Pierre Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Managers and supervisors should properly document the employee misconduct. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. This Factor takes mitigating circumstances into account. If you are looking for a representative, note that we are not taking on any cases at this time. removal). While each case is different, seeking alternatives may be useful. PDF Douglas Factors - AFGE How does action taken promote the efficiency of the service? endstream endobj startxref The Douglas Factors: Disciplining employees is a fact of life. Such cases call into question an employees ability to perform their specific job duties with integrity. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. You should not list a factor unless it is relevant. Relevant? 1999). Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. The Douglas factors are also referred to as mitigating factors. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. This Douglas factor is not one of the more commonly cited Douglas factors. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. 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. 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 . Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. There are certain standards of behavior and conduct expected of employees by our external and internal customers. The Douglas Factors should be considered in selecting a penalty. That translates into harsher penalties for repeat offenders. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. * Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Did management send out a memo clarifying rules? 51, 8 (2001). Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 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. 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. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. WA Cir. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. A chapter 75 action with such a violation must be canceled, although the agency will be free to start over and take a constitutionally correct action.10. The more notorious the offense you commit the more severe the discipline you will face. 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. 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. This Quick Start Guide covers the following Key Points: 1. @ 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 . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . <> Sometimes management may misapply factors, or misconstrue them. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Any replies submitted will be given full consideration. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. For instance, did the employee have access to the table of penalties? Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Merit Systems Protection Board still follows today. @b o $&F Sq70 # the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. It is more often used to attempt to aggravate a disciplinary penalty. 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. 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? Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. See Douglas v. Veterans Administration, 5 M.S.P.R. The key is credibility. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Explanation, if relevant: (9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. Yes___ No____This factor is one of the more technically difficult to apply. 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. %PDF-1.5 % 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. 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 . hb```f``2c`a`,c`@ r, ^Ma Don't force misconduct into a listed offense unless it accurately fits. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case.

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