table of penalties douglas factors

In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Let me give you an example. The more notorious the offense you commit the more severe the discipline you will face. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. We are currently not taking any new cases at this time. Can an employee take responsibility, correct their behavior and come back to the job? Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. The Douglas factors are also referred to as mitigating factors. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. Only relevant factors must be included. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. 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. 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. Other times it may mean providing some evidence to management to further support your position. endobj 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. This Douglas factor is important and we use this argument in our representation of federal employees. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Managers and supervisors should properly document the employee misconduct. 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. 280, 290 (1981). Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? PDF Douglas Factors In Depth - Letter Carrier Connection A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. 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. 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. This is because it puts you on notice of the penalties which is factor #9, below. { 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. 51, 8 (2001). Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. 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. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 9 Ward v. U.S. Your job as an employee is to support your position as best as you possibly can. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). In some instances, you may want to request that management reconsider your case. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. 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. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army Douglas Factors for Federal Employees - berrylegal Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. Sample 1: I have attached the material relied on to support this proposed removal. Which is why Federal Employee Professional Liability Insurance is critical. Relevant? Yes___ No____This factor is one of the more technically difficult to apply. 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. What is effect of the misconduct charged? 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? However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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 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 . 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. Relevant? An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Misconduct and Discipline | U.S. Department of the Interior 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. Berry & Berry PLLC. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Ultimately, the more credible evidence you can provide to support your position the better. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Your absence was not approved by your supervisor. 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. 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. Factor: Nature and seriousness 9. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. A deciding official must consider specific factors in determining the reasonableness of the penalty. But do not highlight them either. !%7K81E8zi. 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. Obtain insurance protection for your career today. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . The first time an employee is If not, include delivery confirmation by the postal or delivery service. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. Cir. Cir. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army 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. This one is pretty self-explanatory. Cir. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Similar offenses can be used to guide penalty selection. 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. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. 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. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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 Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. Whether you use two charges in this case will depend upon the evidence available. <>>> 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 absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. past performance). Douglas Factors matters vary from case to case and federal employees should consult with an attorney. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. What is the table of penalties? - idswater.com Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The Douglas factors are: (1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; This table should be available to you as an employee. The Douglas Factors - Melville Johnson Such cases call into question an employees ability to perform their specific job duties with integrity. 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. a. Relevant? It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. past performance). The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. PDF The Douglas Factors COPYRIGHT 2023. How does action taken promote the efficiency of the service? These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. % Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The consistency of the penalty with any applicable agency table of penalties; 8. The nature and seriousness of the offense, and its relation to the employees 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; the potential for the employees rehabilitation; 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; and. The Federal Starr is a publication by Starr Wright USA. PDF Douglas Factors In Depth - Branch 38 NALC 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. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The Table provides for more serious penalties for . You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$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:#/ 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. Federal government websites often end in .gov or .mil. The Douglas Factors should be considered in selecting a penalty. 49 0 obj <> endobj %PDF-1.5 to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Factor: Employee's . These 12 factors play a key role in the outcome of federal employee discipline cases. The Douglas Factors . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . The nature and seriousness of the offense, and its relationship to the employee's . Douglas Factors in Federal Employment - InformedFED As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 8.Douglas Factor Analysis. Visit WrightUSA.com to start your policy! A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? 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. 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. h[M+}LX,? We need to specifically state why there is erosion of supervisory confidence. The final Douglas Factor asks both manager and employee to consider alternative penalties. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 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. 0 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 . 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. Plaza America Why can such behavior not be tolerated? Factor 3: The employees past disciplinary record. 3 0 obj This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. PDF DOI Department Manual Table of Offenses and Penalties The notoriety of the offense or its impact upon the reputation of the agency; . It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. 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. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240.

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