table of penalties douglas 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. 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 generally involves how much the public has been advised of a federal employees alleged misconduct. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. %PDF-1.5 % 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. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 5 Douglas v. Veterans Administration, 5 M.S.P.R. The employee's job level and type of employment . Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. 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. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Douglas Factors matters vary from case to case and federal employees should consult with an attorney. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Factor 3: The employees past disciplinary record. 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; 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. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. This article covers the Douglas Factors. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. In many cases, managers act as deciding officials in discipline cases. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Your job as an employee is to support your position as best as you possibly can. !%7K81E8zi. Relevant? However, despite the importance of these criteria, many employees arent familiar with them. 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Such cases call into question an employees ability to perform their specific job duties with integrity. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. In theory, discipline should be both corrective and progressive. 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 . xfg! Other times it may mean providing some evidence to management to further support your position. 2015). That translates into harsher penalties for repeat offenders. 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . The .gov means its official. However, if you properly argue this factor it can go a long way towards helping your case. 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). Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. 3 0 obj 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. 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. If you want you can download and read the fullDouglas v. V.A. Cir. 1 0 obj This table should be available to you as an employee. 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:#/ 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. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Do they have a positive track record? Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. A knowledge of the Douglas Factors is helpful for both federal employees and managers. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. %PDF-1.6 % On (DATE), you were scheduled to report to work at (TIME). When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. With responsibility comes greater obligation and scrutiny. When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Managers must take an employees propensity for rehabilitation into account. Your absence was not approved by your supervisor. Regardless, try to avoid getting into an argument with management over factors. Postal Service, 634 F.3d 1274, 1279 (Fed. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Internal Control Evaluation, page 21 . However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. You will be notified in writing of the final decision. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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 . 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 . 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. 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. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Before sharing sensitive information, make sure youre on a federal government site. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. These are known as Douglas factors. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. This Quick Start Guide covers the following Key Points: 1. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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. Private sector cases are drastically different. The notoriety of the offense or its impact upon the reputation of the agency; . 72 0 obj <>stream Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 502, 508 (1994) (holding that because 31 U.S.C. The nature and seriousness of the offense, and its relationship to the employee's . But they may refuse to. 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. How does action taken promote the efficiency of the service? 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. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 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. Cir. Consistency of the penalty with any table of penalties an agency may have . endobj Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 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). Starr Wright USA is the nations leading provider of FEPLI. Federal government websites often end in .gov or .mil. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Managers and supervisors should properly document the employee misconduct. posted June 9, 2003. 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?

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