table of penalties douglas factors table of penalties douglas factors

Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Also any awards or accolades the employee has would be mitigating in nature. This Factor takes mitigating circumstances into account. 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. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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 Negligent or accidental incidents will be viewed more favorably than intentional acts. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. The Douglas Factors: Disciplining employees is a fact of life. Merit Systems Protection Board still follows today. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 280 (1981) These factors are used to explain why the penalty was chosen. Do they have a positive track record? On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. 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. 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. 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 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. 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. The Douglas factors are also referred to as mitigating factors. This factor is generally an afterthought for both management and employees. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Only those Douglas Factors relevant to each case need be considered. 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? 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. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Regardless, try to avoid getting into an argument with management over factors. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 9 Ward v. U.S. Has an employee been on the job for a long time? @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ An overlooked factabout the cost of hiring an attorney is that they can actually save you money. what extent, the "Douglas" factors come into play or how egregious the act was. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. Factor: Notoriety and impact 3. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Factor: Employee's . But do not highlight them either. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. Your absence was not approved by your supervisor. 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 This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. Discipline can range from letters of reprimand to short suspensions. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Relevant? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. % An official website of the United States government. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. 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 ? 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. -What kind of recovery can I get in my discrimination case? <> Govexec.com . Relevant? However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Why can such behavior not be tolerated? The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . 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? Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. hbbd``b`:$ Hd V$D? 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. The first time an employee is 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. 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 . endobj In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Factor 10: Potential for the employees rehabilitation. Postal Service, 634 F.3d 1274, 1279 (Fed. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). The Douglas factors are: (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; 3 Douglas v. Veterans Administration, 5 M.S.P.R. 2 0 obj Specific evidence/testimony as to why an employee can no longer be trusted is critical. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Cir. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. The Douglas Factors should be considered in selecting a penalty. This table should be available to you as an employee. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . This Quick Start Guide covers the following Key Points: 1. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Cir. Additionally, your coworkers have their own assignments. 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. MSPB decision. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Managers must take an employees propensity for rehabilitation into account. This article covers the Douglas 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. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Relevant? 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Employees who can appeal an adverse action to the Board have constitutional due process rights. 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 can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. 280 (1981). 2012) (internal citations and punctuation omitted). Cir. We are currently not taking any new cases at this time. For example, a law enforcement officer is charged with enforcing laws. 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 . If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? The final Douglas Factor asks both manager and employee to consider alternative penalties. xfg! Just knowing the rules, however, cant fully protect you if a case should arise. Can someone help me present the Douglas Factors to management? 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. 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. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The site is secure. A deciding official must consider specific factors in determining the reasonableness of the penalty. Sometimes management may misapply factors, or misconstrue them. 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 (DATE), you were scheduled to report to work at (TIME). If you have been disciplined before you will face harsher discipline going forward. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Relevant? 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. Specification #2. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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 . Don't force misconduct into a listed offense unless it accurately fits. 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. They know the stress of a career, they know how life can be difficult. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. 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. 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. It is more often used to attempt to aggravate a disciplinary penalty. To some extent, this is a subjective question. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. <> Before sharing sensitive information, make sure youre on a federal government site. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. You need to look at the specifics of your case in light of the twelve factors. This has often been considered one of the most important Douglas factors by the MSPB. 0 Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. COPYRIGHT 2023. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Factor: Nature and seriousness 9. By William N. Rudman . By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. 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. In many cases, managers act as deciding officials in discipline cases. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Cir. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors.