table of penalties douglas factors

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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The result will turn on the specifics of your case and the procedural posture as well. This Quick Start Guide covers the following Key Points: 1. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. 10 Ward v. U.S. If you are looking for a representative, note that we are not taking on any cases at this time. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. This table should be available to you as an employee. A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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 Note. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. -What kind of recovery can I get in my discrimination case? These terms are used commonly in Douglas Factors application. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. The final Douglas Factor asks both manager and employee to consider alternative penalties. Cir. The nature and seriousness of the offense, and its relationship to the employee's . They know the stress of a career, they know how life can be difficult. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. 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. 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). This Douglas factor is important and we use this argument in our representation of federal employees. Only those Douglas Factors relevant to each case need be considered. 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The .gov means its official. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Only relevant factors must be included. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. 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. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. An official website of the United States government. 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. Be clear, terse, and apologetic. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for Regardless, try to avoid getting into an argument with management over factors. Federal government websites often end in .gov or .mil. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Discipline can range from letters of reprimand to short suspensions. COPYRIGHT 2023. 49 0 obj <> endobj 280 (1981) These factors are used to explain why the penalty was chosen. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. removal). Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. EachDouglas Factor can work for or against an employee depending on their specific case. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. It is more often used to attempt to aggravate a disciplinary penalty. 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. In addition, actions . 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. If you have been disciplined before you will face harsher discipline going forward. 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. 2 0 obj 280, 305-06 (1981). The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. 4 0 obj Factor 9: The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. Cir. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. Do not deny the existence of bad facts. Relevant? 2278 0 obj <>stream Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Suite 305 past performance). They likely held the same job you holdat some point in the past. These factors are: 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. Obtain insurance protection for your career today. Postal Service, 634 F.3d 1274, 1282 (Fed. 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). 2015). Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). This factor looks to the status of the employee. Cir. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Merit Systems Protection Board still follows today. Berry & Berry PLLC. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. Douglas Factor Analysis. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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? Employees who can appeal an adverse action to the Board have constitutional due process rights. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. %PDF-1.5 % 3 0 obj 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. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. { 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. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? posted June 9, 2003. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Similar offenses can be used to guide penalty selection. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. 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. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Managers and supervisors should properly document the employee misconduct. Internal Control Evaluation, page 21 . 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. How does action taken promote the efficiency of the service? xfg! For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. The fourth Douglas Factor requires managers to take an employees past performance into account. 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). Factor: Employee's . Offenses related to intoxicants. Management has likely even required you to review the table and sign a form asserting your knowledge of it. The reason(s) for this action is (are) specified below. If you list a factor you must explain why it is relevant. If not, include delivery confirmation by the postal or delivery service. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. See Douglas v. 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 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; . Ultimately, managers are people too. In some instances, you may want to request that management reconsider your case. 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 . How the factors will be applied in your disciplinary case depends on the specifics of your case. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 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. These 12 factors play a key role in the outcome of federal employee discipline cases. The employee's job level and type of employment . Explanation, if relevant: (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.Relevant? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. If you want you can download and read the fullDouglas v. V.A. 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. The notoriety of the offense or its impact upon the reputation of the agency; . B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. While each case is different, seeking alternatives may be useful. Relevant? So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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? Do you need a table of penalties in OPM? Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. Remain calm, deferential and respectful at all times. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Whether you use two charges in this case will depend upon the evidence available. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . These factors are the following: 1. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. . You neither came to work nor did you call in your absence. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Also any awards or accolades the employee has would be mitigating in nature. @b o $&F Sq70 # By William N. Rudman . It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. Specific evidence/testimony as to why an employee can no longer be trusted is critical. What every federal employee facing discipline should be familiar with: The Douglas Factors. In theory, discipline should be both corrective and progressive. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. h[M+}LX,? We are currently not taking any new cases at this time. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Additionally, this factor looks at intent. 1 0 obj Additionally, your coworkers have their own assignments. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. past performance). endobj Such cases call into question an employees ability to perform their specific job duties with integrity. Has an employee been on the job for a long time? endstream endobj startxref 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 . 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. If the person signed for receipt of the letter include that information. 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.

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