table of penalties douglas factors

PDF DOI Department Manual Table of Offenses and Penalties When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. 7 Douglas v. Veterans Administration, 5 M.S.P.R. How do you handle these aggravating factors? 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. 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). 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 . \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Cir. A supervisor cannot just say it; he/she has to prove it. %%EOF Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. The Douglas Factors - Melville Johnson 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. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Relevant? The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. The final Douglas Factor asks both manager and employee to consider alternative penalties. 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 B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# %PDF-1.5 They likely held the same job you holdat some point in the past. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). removal). Misconduct and Discipline | U.S. Department of the Interior For more information, visit WrightUSA.com. @b o $&F Sq70 # The more notorious the offense you commit the more severe the discipline you will face. 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. 2 0 obj The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. With responsibility comes greater obligation and scrutiny. It is important to rebut these issues in a Douglas factor defense. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . If you want you can download and read the fullDouglas v. V.A. The employee's job level and type of employment . 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 . We need to specifically state why there is erosion of supervisory confidence. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 3 Douglas v. Veterans Administration, 5 M.S.P.R. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Relevant? Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. Factor 10: Potential for the employees rehabilitation. Also any awards or accolades the employee has would be mitigating in nature. 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. 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). endobj 280, 305-06 (1981). Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. Only those Douglas Factors relevant to each case need be considered. This means you should provide objective facts to support your arguments if you can. 9 Ward v. U.S. Sample 1: I have attached the material relied on to support this proposed removal. 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. 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. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. 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. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Many federal agencies maintain tables of penalties that detail discipline options for common offenses. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. How the factors will be applied in your disciplinary case depends on the specifics of your case. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r PDF Douglas Factors - AFGE 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. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream But they may refuse to. In many cases, managers act as deciding officials in discipline cases. 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. While each case is different, seeking alternatives may be useful. 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. Conclusions and vague statements do not hold much weight with third parties. See Douglas v. Veterans Administration, 5 M.S.P.R. Your job as an employee is to support your position as best as you possibly can. 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 ? Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Consistency of the penalty with any table of penalties an agency may have . PDF The Douglas Factors - United States Office of Personnel Management We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. EachDouglas Factor can work for or against an employee depending on their specific case. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. hbbd``b`:$ Hd V$D? This article covers the Douglas Factors. You should review the table to make sure that your discipline is in keeping with this table. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. A well presented reply to theproposed discipline can lead to substantial mitigation. 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? (Use sample 1). 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. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. On (DATE), you were scheduled to report to work at (TIME). 280 (1981) These factors are used to explain why the penalty was chosen. The factors may mitigate or aggravate (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.Relevant? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 2015). 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. This Factor takes mitigating circumstances into account. Starr Wright USA is the nations leading provider of FEPLI. However, the principle of "like penalties for like offenses" does not require perfect consistency. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. 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. The key is credibility. Douglas Factor Mitigation for Federal Employees Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? This Quick Start Guide covers the following Key Points: 1. The site is secure. 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. 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 . Factor 1: 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. 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. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). The result will turn on the specifics of your case and the procedural posture as well. Douglas Factors in Federal Employment - InformedFED 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). Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. 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. 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. Do they have a positive track record? 1999). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ Govexec.com . Managers must also consider the scope of the misconduct in the context of an employees position and job duties. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. What kind of recovery can I get in my discrimination case? Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 280, 290 (1981). Whether you use two charges in this case will depend upon the evidence available. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Berry & Berry PLLC. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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. What every federal employee facing discipline should be familiar with: The Douglas Factors. PDF The Douglas Factors - National Federation of Federal Employees @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . The Douglas Factors - United States Office of Personnel Management 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Suite 305 !%7K81E8zi. . 2278 0 obj <>stream For instance, did the employee have access to the table of penalties? PDF Douglas Factors In Depth - Letter Carrier Connection Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. By William N. Rudman . Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. %PDF-1.6 % If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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. Only relevant factors must be included. A deciding official must consider specific factors in determining the reasonableness of the penalty. On (DATE), you were scheduled to report to work at (TIME). Negligent or accidental incidents will be viewed more favorably than intentional acts. Do you need a table of penalties in OPM? The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 280 (1981) These factors are used to explain why the penalty was chosen. 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; PDF Douglas Factors In Depth - Branch 38 NALC The first time an employee is 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, this factor looks at intent. Consistency of the penalty with any applicable agency table of penalties; 8. The national media picked the story up, and it was very detrimental to the agency. . Relevant? 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. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. 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. What if I do not agree with managements analysisof a specific Douglas Factor? The reason(s) for this action is (are) specified below. A knowledge of the Douglas Factors is helpful for both federal employees and managers. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. Remain calm, deferential and respectful at all times. 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. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. Discipline can range from letters of reprimand to short suspensions. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. past performance). a. Factor: Notoriety and impact 3. For example, a law enforcement officer is charged with enforcing laws. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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 were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Relevant? This Douglas factor is not one of the more commonly cited Douglas factors. Contact your employee relations advisor to get the information to fill in the blanks. Don't force misconduct into a listed offense unless it accurately fits.

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