table of penalties douglas factors

%PDF-1.6 % Other times it may mean providing some evidence to management to further support your position. Sometimes management may misapply factors, or misconstrue them. While each case is different, seeking alternatives may be useful. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. However, if you properly argue this factor it can go a long way towards helping your case. 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. 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. 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. The final Douglas Factor asks both manager and employee to consider alternative penalties. Yes___ No____This factor is one of the more technically difficult to apply. Visit WrightUSA.com to start your policy! The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Did the employee have access to a handbook that detailed proper procedure and policy? 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. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). 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; . Whether you use two charges in this case will depend upon the evidence available. 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. Can someone help me present the Douglas Factors to management? Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Managers and supervisors should properly document the employee misconduct. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. The Douglas Factors . Cir. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? <> A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. 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. 72 0 obj <>stream So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. 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. 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. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. How do you handle these aggravating factors? Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. This Douglas factor is important and we use this argument in our representation of federal employees. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Don't force misconduct into a listed offense unless it accurately fits. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). 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. Relevant? 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. 9 Ward v. U.S. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. Discipline can range from letters of reprimand to short suspensions. 5 Douglas v. Veterans Administration, 5 M.S.P.R. If you have been disciplined before you will face harsher discipline going forward. 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. PDF The Douglas Factors Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 1999). 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. 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. This table should be available to you as an employee. Ultimately, managers are people too. For more information, visit WrightUSA.com. 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. 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Postal Service, 634 F.3d 1274, 1282 (Fed. Similar offenses can be used to guide penalty selection. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties Relevant? The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. The Douglas Factors - United States Office of Personnel Management 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. hbbd``b`:$ Hd V$D? Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army hb```f``2c`a`,c`@ r, ^Ma The consistency of the penalty with any applicable agency table of penalties; 8. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. 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 . However, the principle of "like penalties for like offenses" does not require perfect consistency. EAP can be reached by calling 1-800-XXX-XXXX. 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). This one is pretty self-explanatory. 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. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. See U.S. Agency's table of penalties recognizes this severity in establishing ranges of penalties for MSPB decision. Lets say you missed a deadline for an important assignment and management has proposed removal. 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. If you want you can download and read the fullDouglas v. V.A. In many cases, managers act as deciding officials in discipline cases. (Use sample 1). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. We are currently not taking any new cases at this time. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. Heres what anyone who works for the federal government needs to know about the Douglas Factors. The nature and seriousness of the offense, and its relationship to the employee's . Factor: Consistency with table of penalties 2. Sample 2: You have the right to review the material relied on to support this proposed removal. @b o $&F Sq70 # For example, a law enforcement officer is charged with enforcing laws. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. What kind of recovery can I get in my discrimination case? 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. past performance). Managers must apply penalties that are similar to those imposed in like cases. Relevant? These 12 factors play a key role in the outcome of federal employee discipline cases. a. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. 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. Any personal issues going on around the time of the misconduct should be brought to the attention of management. See Douglas v. Veterans Administration, 5 M.S.P.R. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. If you are low level employee with no supervisory functions this factor should have some mitigating value. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. 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. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. On the surface, many incidents of misconduct may seem to be similar. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. PDF Douglas Factors In Depth - Letter Carrier Connection The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Which is why Federal Employee Professional Liability Insurance is critical. Did management send out a memo clarifying rules? Additionally, your coworkers have their own assignments. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 3 0 obj -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. Let me give you an example. endobj . The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Be clear, terse, and apologetic. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. How the factors will be applied in your disciplinary case depends on the specifics of your case. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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 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. Regardless, try to avoid getting into an argument with management over factors. 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 . 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. 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 - berrylegal Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Agency's table of penalties recognizes this severity in establishing ranges of penalties for This factor lends itself most to employees arguing for leniency in their case. 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). This means you should provide objective facts to support your arguments if you can. <>/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>> Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule.

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