table of penalties douglas factors

For instance, did the employee have access to the table of penalties? 4 0 obj 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. What kind of recovery can I get in my discrimination case? 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. See Douglas v. Veterans Administration, 5 M.S.P.R. Additionally, this factor looks at intent. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. 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. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Factor 3: The employees past disciplinary record. Cir. You neither came to work nor did you call in your absence. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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. 280 (1981) These factors are used to explain why the penalty was chosen. 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 . Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. Cir. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 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). For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. 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. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. %PDF-1.5 % For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. 72 0 obj <>stream But they may refuse to. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. There are certain standards of behavior and conduct expected of employees by our external and internal customers. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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:#/ Postal Service, 634 F.3d 1274, 1279 (Fed. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. It is important that you really highlightthefactors that are in your favor. endobj %PDF-1.6 % Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 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. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. The Douglas Factors . 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Misconduct is also considered more severe if it is done maliciously or for personal gain. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. MSPB decision. The Douglas factors are also referred to as mitigating factors. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. a. Whether you use two charges in this case will depend upon the evidence available. They know the stress of a career, they know how life can be difficult. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Discipline can range from letters of reprimand to short suspensions. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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 this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal). Sample: Specification #1. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. We need to specifically state why there is erosion of supervisory confidence. Heres what anyone who works for the federal government needs to know about the Douglas Factors. They likely held the same job you holdat some point in the past. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 3 Douglas v. Veterans Administration, 5 M.S.P.R. The site is secure. Relevant? 280 (1981) These factors are used to explain why the penalty was chosen. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Cir. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). Starr Wright USA is the nations leading provider of FEPLI. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. You need to look at the specifics of your case in light of the twelve factors. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. A well presented reply to theproposed discipline can lead to substantial mitigation. 1999). endobj Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. 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 . 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. 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. The Douglas Factors should be considered in selecting a penalty. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. 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. Factor: Notoriety and impact 3. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. The Douglas Factors: Disciplining employees is a fact of life. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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). xfg! This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. For more information, visit WrightUSA.com. 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. With responsibility comes greater obligation and scrutiny. For example, a law enforcement officer is charged with enforcing laws. 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. Yes___ No____This factor is one of the more technically difficult to apply. 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. In many cases, managers act as deciding officials in discipline cases. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. 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. Conclusions and vague statements do not hold much weight with third parties. @ 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 . Managers must take an employees propensity for rehabilitation into account. 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. Can an employee take responsibility, correct their behavior and come back to the job? This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Only relevant factors must be included. 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 ? For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. 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. Relevant? %%EOF 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. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Did management send out a memo clarifying rules? This article covers the Douglas Factors. This Factor takes mitigating circumstances into account. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. This one is pretty self-explanatory. 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. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The more notorious the offense you commit the more severe the discipline you will face. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. 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. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. The consistency of the penalty with any applicable Agency table of penalties; h. The notoriety of the offense or its impact upon the reputation of the Agency; . Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# The reason(s) for this action is (are) specified below. 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. 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; However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. Managers and supervisors should properly document the employee misconduct. Cir. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Cir. 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. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. % This is because it puts you on notice of the penalties which is factor #9, below. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. 3 0 obj Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Sample 1: I have attached the material relied on to support this proposed removal. If you are low level employee with no supervisory functions this factor should have some mitigating value. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. How does action taken promote the efficiency of the service? However, the principle of "like penalties for like offenses" does not require perfect consistency. 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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