table of penalties douglas factors table of penalties douglas factors

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. If you are looking for a representative, note that we are not taking on any cases at this time. generadores de diesel precios 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. This Factor takes mitigating circumstances into account. 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 . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. The result will turn on the specifics of your case and the procedural posture as well. The Douglas Factors: What You Need to Know - Medium A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Yes___ No____This factor is one of the more technically difficult to apply. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. This article covers the Douglas Factors. Before sharing sensitive information, make sure youre on a federal government site. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 1 What every federal employee facing discipline should be familiar with: 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. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. For example, a law enforcement officer is charged with enforcing laws. Can an employee take responsibility, correct their behavior and come back to the job? Just knowing the rules, however, cant fully protect you if a case should arise. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. 280, 305-06 (1981). Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Internal Control Evaluation, page 21 . By William N. Rudman . 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. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Factor 3: The employees past disciplinary record. You should review the table to make sure that your discipline is in keeping with this table. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. The site is secure. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. 51, 8 (2001). For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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. 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. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties EAP can be reached by calling 1-800-XXX-XXXX. WA Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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: Consistency with table of penalties 2. 72 0 obj <>stream Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Cir. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Sample 1: I have attached the material relied on to support this proposed removal. Cir. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. -What kind of recovery can I get in my discrimination case? If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. Sometimes management may misapply factors, or misconstrue them. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 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. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. 280, 290 (1981). On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. PDF DOI Department Manual Table of Offenses and Penalties 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. The final Douglas Factor asks both manager and employee to consider alternative penalties. They know the stress of a career, they know how life can be difficult. 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. Relevant? Agency's table of penalties recognizes this severity in establishing ranges of penalties for ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. <> PDF Committee on Oversight and Government Reform U.S. House of Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Contact your employee relations advisor to get the information to fill in the blanks. Discipline can range from letters of reprimand to short suspensions. Relevant? 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. Cir. 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. 2278 0 obj <>stream 1999). 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Postal Service, 634 F.3d 1274, 1282 (Fed. 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. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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 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. 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 . Regardless, try to avoid getting into an argument with management over factors. 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 key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 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. 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. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Relevant? 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 looks to the status of the employee. Do they have a positive track record? The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. These factors are the following: 1. See U.S. Factor: Notoriety and impact 3. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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 factor is generally an afterthought for both management and employees. Only those Douglas Factors relevant to each case need be considered. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Don't force misconduct into a listed offense unless it accurately fits. h[M+}LX,? 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. 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. The Federal Starr is a publication by Starr Wright USA. 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Federal agencies may take disciplinary action against employees who engage in misconduct. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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. But they may refuse to. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. However, the principle of "like penalties for like offenses" does not require perfect consistency. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). @b o $&F Sq70 # Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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. The Table provides for more serious penalties for . We need to specifically state why there is erosion of supervisory confidence. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. 280 (1981) These factors are used to explain why the penalty was chosen. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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 . 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. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. While each case is different, seeking alternatives may be useful. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. (Use sample 1). If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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). 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. But do not highlight them either. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Misconduct is also considered more severe if it is done maliciously or for personal gain. disciplinary situations. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. past performance). For instance, did the employee have access to the table of penalties? All other penalty determinations should undergo thorough reasoning under the Douglas Factors. See Douglas v. Veterans Administration, 5 M.S.P.R. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Any replies submitted will be given full consideration. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Relevant? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. EachDouglas Factor can work for or against an employee depending on their specific case. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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. Reston, VA 20190. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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? 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). ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r This Douglas factor is important and we use this argument in our representation of federal employees. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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). 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. Your absence was not approved by your supervisor. Did management send out a memo clarifying rules? PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Cir. 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. This table should be available to you as an employee. The key is credibility. You need to look at the specifics of your case in light of the twelve factors. On the surface, many incidents of misconduct may seem to be similar. 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. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Starr Wright USA is the nations leading provider of FEPLI. 10 Ward v. U.S. Other times it may mean providing some evidence to management to further support your position.