table of penalties douglas factors

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: Employee's . %PDF-1.5 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. 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. 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. 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. removal). 1999). For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. While each case is different, seeking alternatives may be useful. @b o $&F Sq70 # This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Check with your labor relations advisor. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. This factor lends itself most to employees arguing for leniency in their case. Table Of Penalties Douglas Factors This is because it puts you on notice of the penalties which is factor #9, below. Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Sometimes management may misapply factors, or misconstrue them. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. What kind of recovery can I get in my discrimination case? Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. Do they have a positive track record? Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 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; . 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. 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 <> 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. 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. It is more often used to attempt to aggravate a disciplinary penalty. You should review the table to make sure that your discipline is in keeping with this table. 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. An official website of the United States government. Other times it may mean providing some evidence to management to further support your position. We need to specifically state why there is erosion of supervisory confidence. Cir. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. Factor 10: Potential for the employees rehabilitation. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. You neither came to work nor did you call in your absence. If you are low level employee with no supervisory functions this factor should have some mitigating value. Let me give you an example. These terms are used commonly in Douglas Factors application. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. How do you handle these aggravating factors? But they may refuse to. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. This means you should provide objective facts to support your arguments if you can. hbbd``b`:$ Hd V$D? These 12 factors play a key role in the outcome of federal employee discipline cases. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. If the person signed for receipt of the letter include that information. 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. Relevant? In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? %PDF-1.6 % Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Douglas Factor Mitigation for Federal Employees 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. % Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. 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. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. 49 0 obj <> endobj Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Sample 2: You have the right to review the material relied on to support this proposed removal. 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n The Table provides for more serious penalties for . In some instances this may mean pointing out points of analysis or facts to management if they are unaware. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Employees who can appeal an adverse action to the Board have constitutional due process rights. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. { 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. Before sharing sensitive information, make sure youre on a federal government site. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. If you want you can download and read the fullDouglas v. V.A. * Douglas v. Veterans Administration, 5 M.S.P.R. Cir. 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. Cir. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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 not one of the more commonly cited Douglas factors. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. . Lets say you missed a deadline for an important assignment and management has proposed removal. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . 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. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 9 Ward v. U.S. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 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, a law enforcement officer is charged with enforcing laws. -What kind of recovery can I get in my discrimination case? What is the table of penalties? - idswater.com On (DATE), you were scheduled to report to work at (TIME). For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Cir. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. By William N. Rudman . Which is why Federal Employee Professional Liability Insurance is critical. 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. 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Relevant? Douglas Factors matters vary from case to case and federal employees should consult with an attorney. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. However, despite the importance of these criteria, many employees arent familiar with them. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. %%EOF ALL RIGHTS RESERVED. 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. Your job as an employee is to support your position as best as you possibly can. 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. 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. 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). Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 280, 305-06 (1981). [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Your absence was not approved by your supervisor. xfg! In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . MSPB decision. 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. 8.Douglas Factor Analysis. 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 . The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. a. the case of Douglas vs. 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. Managers must take an employees propensity for rehabilitation into account. 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. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The nature and seriousness of the offense, and its relationship to the employee's . This has often been considered one of the most important Douglas factors by the MSPB. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. A Table of Penalties is a list of . If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Did management send out a memo clarifying rules? Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. past performance). EAP can be reached by calling 1-800-XXX-XXXX. 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. 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. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. Cir. 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 ? See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The Federal Starr is a publication by Starr Wright USA. 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. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com Only relevant factors must be included. 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. If you list a factor you must explain why it is relevant. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. 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 . Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. WA 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. 1 0 obj Press Briefing by Press Secretary Karine Jean-Pierre Negligent or accidental incidents will be viewed more favorably than intentional acts. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 280, 302 (1981). In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. 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 FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 10 Ward v. U.S. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. For more information, visit WrightUSA.com. Douglas Factor Analysis. 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. PDF The Douglas Factors - National Federation of Federal Employees 2278 0 obj <>stream For example, an allegation of dishonesty would be treated . endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Consistency of the penalty with any applicable agency table of penalties; 8. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Any replies submitted will be given full consideration. The final Douglas Factor asks both manager and employee to consider alternative penalties. 51, 8 (2001). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? The more notorious the offense you commit the more severe the discipline you will face. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Managers and supervisors should properly document the employee misconduct. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Be clear, terse, and apologetic.

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