table of penalties douglas factorstable 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. 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:#/ 280 (1981). 3 Douglas v. Veterans Administration, 5 M.S.P.R. Did the employee have access to a handbook that detailed proper procedure and policy? If not, include delivery confirmation by the postal or delivery service. Visit WrightUSA.com to start your policy! In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 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. past performance). 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. Consistency of the penalty with any table of penalties an agency may have . Conclusions and vague statements do not hold much weight with third parties. %PDF-1.5 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. 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. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. * Douglas v. Veterans Administration, 5 M.S.P.R. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. 280, 305-06 (1981). Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. Yes___ No____This factor is one of the more technically difficult to apply. %%EOF On (DATE), you were scheduled to report to work at (TIME). But they may refuse to. To some extent, this is a subjective question. 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. The Federal Starr is a publication by Starr Wright USA. 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. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. 280, 290 (1981). Govexec.com . @ 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 . The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Employees who can appeal an adverse action to the Board have constitutional due process rights. If this is impractical to do, use Sample 2. These terms are used commonly in Douglas Factors application. Check with your labor relations advisor. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 49 0 obj <> endobj The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Did management send out a memo clarifying rules? EachDouglas Factor can work for or against an employee depending on their specific case. The Table provides for more serious penalties for . 0 If you have been disciplined before you will face harsher discipline going forward. <>/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>> How do you handle these aggravating factors? Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. 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). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Factor: Consistency with table of penalties 2. This Douglas factor is not one of the more commonly cited Douglas factors. We are currently not taking any new cases at this time. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. This Quick Start Guide covers the following Key Points: 1. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Berry & Berry PLLC. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. This one is pretty self-explanatory. . These are known as Douglas factors. Note. 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. 2012) (internal citations and punctuation omitted). 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. It is more often used to attempt to aggravate a disciplinary penalty. You should not list a factor unless it is relevant. 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. Cir. A Table of Penalties is a list of . 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. % A deciding official must consider specific factors in determining the reasonableness of the penalty. Additionally, this factor looks at intent. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Internal Control Evaluation, page 21 . Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The .gov means its official. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Regardless, try to avoid getting into an argument with management over factors. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. 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. These 12 factors play a key role in the outcome of federal employee discipline cases. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 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 Your absence was not approved by your supervisor. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. The Douglas Factors: Disciplining employees is a fact of life. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. What if I do not agree with managements analysisof a specific Douglas Factor? Let me give you an example. 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 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Obtain insurance protection for your career today. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. Management has likely even required you to review the table and sign a form asserting your knowledge of it. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. 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. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 1999). Do they have a positive track record? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Sample 1: I have attached the material relied on to support this proposed removal. Factor 10: Potential for the employees rehabilitation. 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. Private sector cases are drastically different. Negligent or accidental incidents will be viewed more favorably than intentional acts. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. 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; . 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. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. 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). The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. Just knowing the rules, however, cant fully protect you if a case should arise. 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. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. 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. 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 Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). In theory, discipline should be both corrective and progressive. In many cases, managers act as deciding officials in discipline cases. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. 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. Ultimately, the more credible evidence you can provide to support your position the better. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. The consistency of the penalty with any applicable agency table of penalties; 8. Relevant? Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Which is why Federal Employee Professional Liability Insurance is critical. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. 11700 Plaza America Drive Only those Douglas Factors relevant to each case need be considered. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. For more information, visit WrightUSA.com. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Merit Systems Protection Board still follows today. 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). For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Sometimes management may misapply factors, or misconstrue them. You will be notified in writing of the final decision. The idea is that discipline is meantto be corrective and progressive. WA Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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. 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? Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. See Douglas v. Veterans Administration, 5 M.S.P.R. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. %PDF-1.5 % Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. However, despite the importance of these criteria, many employees arent familiar with them. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. 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. Cir. endobj 4 0 obj The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. You neither came to work nor did you call in your absence. stream The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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 ? removal). The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. The more notorious the offense you commit the more severe the discipline you will face. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. The Douglas factors are also referred to as mitigating factors. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? endobj 10 Ward v. U.S. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 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. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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. If you list a factor you must explain why it is relevant. 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. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 9 Ward v. U.S. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty.

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