table of penalties douglas factors table of penalties douglas factors

In theory, discipline should be both corrective and progressive. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Did the employee have access to a handbook that detailed proper procedure and policy? 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. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. 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 . This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. 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. 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. This Factor takes mitigating circumstances into account. 51, 8 (2001). When looking for an attorney make sure they have experience handling federal-sector employment cases. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 2 0 obj This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. The Douglas Factors . 280 (1981). Merit Systems Protection Board still follows today. 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. %PDF-1.5 % The reason(s) for this action is (are) specified below. 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. 280, 290 (1981). If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Managers and supervisors should properly document the employee misconduct. Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. 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). Heres what anyone who works for the federal government needs to know about the Douglas Factors. The more notorious the offense you commit the more severe the discipline you will face. . Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. Ultimately, managers are people too. 2012) (internal citations and punctuation omitted). Yes___ No____This factor is one of the more technically difficult to apply. 2015). For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. Specification #2. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Discipline can range from letters of reprimand to short suspensions. 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). 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. 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. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# To some extent, this is a subjective question. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. However, if you properly argue this factor it can go a long way towards helping your case. This means you should provide objective facts to support your arguments if you 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. Additionally, your coworkers have their own assignments. You neither came to work nor did you call in your absence. 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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Do they have a positive track record? 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. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. h[M+}LX,? The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. 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. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. 1985). 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. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Why can such behavior not be tolerated? %PDF-1.6 % Only relevant factors must be included. Postal Service, 634 F.3d 1274, 1282 (Fed. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This one is pretty self-explanatory. 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. This Douglas factor is important and we use this argument in our representation of federal employees. posted June 9, 2003. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. For example, a law enforcement officer is charged with enforcing laws. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). Factor: Notoriety and impact 3. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . You need to look at the specifics of your case in light of the twelve factors. Cir. hb```f``2c`a`,c`@ r, ^Ma The consistency of the penalty with any applicable agency table of penalties; 8. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. COPYRIGHT 2023. 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). Relevant? 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 2278 0 obj <>stream The employee's job level and type of employment . 7 Douglas v. Veterans Administration, 5 M.S.P.R. If you list a factor you must explain why it is relevant. 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. 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. 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. Check with your labor relations advisor. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. 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. 3 0 obj A supervisor cannot just say it; he/she has to prove it. On the surface, many incidents of misconduct may seem to be similar. Cir. 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. The first time an employee is 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. This has often been considered one of the most important Douglas factors by the MSPB. On (DATE), you were scheduled to report to work at (TIME). Only those Douglas Factors relevant to each case need be considered. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Agency's table of penalties recognizes this severity in establishing ranges of penalties for We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. Be clear, terse, and apologetic. For instance, did the employee have access to the table of penalties? Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Relevant? Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. If you want you can download and read the fullDouglas v. V.A. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 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 . 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. 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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? The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. a. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Remain calm, deferential and respectful at all times. 4 0 obj Factor: Nature and seriousness 9. It is more often used to attempt to aggravate a disciplinary penalty. If not, include delivery confirmation by the postal or delivery service. Contact your employee relations advisor to get the information to fill in the blanks. 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. %PDF-1.5 Sample: Specification #1. 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.