table of penalties douglas factors

0 Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. The Douglas Factors . The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. 10 Ward v. U.S. 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. If you want you can download and read the fullDouglas v. V.A. endobj A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. These 12 factors play a key role in the outcome of federal employee discipline cases. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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. Ultimately, the more credible evidence you can provide to support your position the better. 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. With responsibility comes greater obligation and scrutiny. If you are looking for a representative, note that we are not taking on any cases at this time. Whether you use two charges in this case will depend upon the evidence available. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. Yes___ No____This factor is one of the more technically difficult to apply. Cir. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. Reston, VA 20190. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Remain calm, deferential and respectful at all times. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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? A Table of Penalties is a list of . Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n An official website of the United States government. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. If not, include delivery confirmation by the postal or delivery service. %PDF-1.5 2 0 obj Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. . If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. a. 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 . What if I do not agree with managements analysisof a specific Douglas Factor? Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. 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 right to answer orally does not include the right to a formal hearing with examination of witnesses. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). EAP can be reached by calling 1-800-XXX-XXXX. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Did the employee have access to a handbook that detailed proper procedure and policy? Employees who can appeal an adverse action to the Board have constitutional due process rights. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. See Douglas v. Veterans Administration, 5 M.S.P.R. 9 Ward v. U.S. endstream endobj startxref You neither came to work nor did you call in your absence. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 4 0 obj Federal government websites often end in .gov or .mil. 280 (1981) These factors are used to explain why the penalty was chosen. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Discipline can range from letters of reprimand to short suspensions. Offenses related to intoxicants. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. For example, a law enforcement officer is charged with enforcing laws. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. You neither came to work nor did you call in your absence. ^K[i>P+hvSbfpNK"ly(O$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. %PDF-1.5 % Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 1985). 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. Did management send out a memo clarifying rules? A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. @ 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 . \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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 . Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. 1999). -What kind of recovery can I get in my discrimination case? Factor 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. @b o $&F Sq70 # If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. The reason(s) for this action is (are) specified below. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. You will be notified in writing of the final decision. Plaza America Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. 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 8: The notoriety of the offense or its impact upon the reputation of the agency. By William N. Rudman . 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). Lets say you missed a deadline for an important assignment and management has proposed removal. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. It is important to rebut these issues in a Douglas factor defense. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Obtain insurance protection for your career today. Visit WrightUSA.com to start your policy! Can an employee take responsibility, correct their behavior and come back to the job? This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. This Douglas factor is not one of the more commonly cited Douglas factors. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. h[M+}LX,? The nature and seriousness of the offense, and its relationship to the employee's . 1 0 obj The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Managers must apply penalties that are similar to those imposed in like cases. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. 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 . 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. 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. Can someone help me present the Douglas Factors to management? Cir. 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? One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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 . Relevant? Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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). The Douglas Factors: Disciplining employees is a fact of life. 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. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. The Douglas Factors should be considered in selecting a penalty. The Table provides for more serious penalties for . Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. 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. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. Heres what anyone who works for the federal government needs to know about the Douglas Factors. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 3 Douglas v. Veterans Administration, 5 M.S.P.R. The .gov means its official. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. 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? Your misconduct adversely affected not only the work you were assigned but required that your coworkers perform your duties as well taking time away from their assigned work. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. If you are low level employee with no supervisory functions this factor should have some mitigating value. The Douglas Factors . When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. The Douglas Factors include: 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. The Federal Starr is a publication by Starr Wright USA. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating.

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