table of penalties douglas factorstable of penalties douglas factors

What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Consistency of the penalty with any table of penalties an agency may have . -What kind of recovery can I get in my discrimination case? It is important that you really highlightthefactors that are in your favor. The Federal Starr is a publication by Starr Wright USA. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. A well presented reply to theproposed discipline can lead to substantial mitigation. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Relevant? Do they have a positive track record? 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 3 0 obj Ultimately, managers are people too. Relevant? As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. The employee's job level and type of employment . But do not highlight them either. This Quick Start Guide covers the following Key Points: 1. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. 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. The Douglas Factors . A deciding official must consider specific factors in determining the reasonableness of the penalty. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. Federal agencies may take disciplinary action against employees who engage in misconduct. They likely held the same job you holdat some point in the past. 8.Douglas Factor Analysis. This has often been considered one of the most important Douglas factors by the MSPB. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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 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. Obtain insurance protection for your career today. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Did management send out a memo clarifying rules? If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 3 Douglas v. Veterans Administration, 5 M.S.P.R. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 1999). 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. These factors are the following: 1. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Check with your labor relations advisor. This table should be available to you as an employee. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. 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). On (DATE), you were scheduled to report to work at (TIME). We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. 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. 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. Did the employee have access to a handbook that detailed proper procedure and policy? Such cases call into question an employees ability to perform their specific job duties with integrity. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. 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. Yes___ No____This factor is one of the more technically difficult to apply. %PDF-1.5 Whether you use two charges in this case will depend upon the evidence available. 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? Managers and supervisors should properly document the employee misconduct. You need to look at the specifics of your case in light of the twelve factors. 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. 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. 4 0 obj removal). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. This one is pretty self-explanatory. 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). 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. Deciding officials should do a Douglas analysis in every case, except when Congress . Additionally, your coworkers have their own assignments. Private sector cases are drastically different. The Table provides for more serious penalties for . As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Factor: Nature and seriousness 9. 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. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& When looking for an attorney make sure they have experience handling federal-sector employment cases. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. endstream endobj startxref We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. 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. This Douglas factor is not one of the more commonly cited Douglas factors. (Use sample 1). 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 % Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Sample: Specification #1. 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. 280, 290 (1981). 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. If this is impractical to do, use Sample 2. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Factor 3: The employees past disciplinary record. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. h[M+}LX,? If you want you can download and read the fullDouglas v. V.A. 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. 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. Other times it may mean providing some evidence to management to further support your position. 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. Cir. 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. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Only relevant factors must be included. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Additionally, this factor looks at intent. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. Cir. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. The key is credibility. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). These are known as Douglas factors. 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. 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Misconduct is also considered more severe if it is done maliciously or for personal gain. 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? Consistency of the penalty with any applicable agency table of penalties; 8. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? The Douglas Factors include: The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. You should review the table to make sure that your discipline is in keeping with this table. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. On the surface, many incidents of misconduct may seem to be similar. hbbd``b`:$ Hd V$D? Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Lets say you missed a deadline for an important assignment and management has proposed removal. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. . Specification #2. This Douglas factor is important and we use this argument in our representation of federal employees. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# What every federal employee facing discipline should be familiar with: The Douglas Factors. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 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. 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.
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