table of penalties douglas factors
4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 1 0 obj 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. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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; . As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. Ultimately, the more credible evidence you can provide to support your position the better. 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. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. However, despite the importance of these criteria, many employees arent familiar with them. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 11700 Plaza America Drive To some extent, this is a subjective question. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Whether you use two charges in this case will depend upon the evidence available. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Management has likely even required you to review the table and sign a form asserting your knowledge of it. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. 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 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. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 3 Douglas v. Veterans Administration, 5 M.S.P.R. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. * Douglas v. Veterans Administration, 5 M.S.P.R. You should not list a factor unless it is relevant. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 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. 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). 280, 305-06 (1981). This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. 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. Suite 305 A knowledge of the Douglas Factors is helpful for both federal employees and managers. 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. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. The right to answer orally does not include the right to a formal hearing with examination of witnesses. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. @b o $&F Sq70 # A deciding official must consider specific factors in determining the reasonableness of the penalty. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. These 12 factors play a key role in the outcome of federal employee discipline cases. Cir. But do not highlight them either. Berry & Berry PLLC. Cir. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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). 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. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 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. 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. Cir. Why can such behavior not be tolerated? The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. These are known as Douglas factors. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may affidavits, performance ratings, SF-50s, letters of commendation) for the record. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. We are currently not taking any new cases at this time. Yes___ No____This factor is one of the more technically difficult to apply. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). You neither came to work nor did you call in your absence. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Regardless, try to avoid getting into an argument with management over factors. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. Also any awards or accolades the employee has would be mitigating in nature. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Factor 7: Consistency of the penalty with any applicable agency table of penalties. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Obtain insurance protection for your career today. 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 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 reason(s) for this action is (are) specified below. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. 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 . Before sharing sensitive information, make sure youre on a federal government site. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. Discipline can range from letters of reprimand to short suspensions. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Specification #2. 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. 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. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). The Douglas Factors . If you want you can download and read the fullDouglas v. V.A. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. 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. 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. 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 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. Sample 2: You have the right to review the material relied on to support this proposed removal. 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 national media picked the story up, and it was very detrimental to the agency. For more information, visit WrightUSA.com. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. h[M+}LX,? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 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 ? Contact your employee relations advisor to get the information to fill in the blanks. 10 Ward v. U.S. 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Factor: Consistency with table of penalties 2. 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. 1985). Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. <>/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>> B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. Don't force misconduct into a listed offense unless it accurately fits. Can an employee take responsibility, correct their behavior and come back to the job? 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). In addition, actions . It is important that you really highlightthefactors that are in your favor. On (DATE), you were scheduled to report to work at (TIME). Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. The Douglas Factors . First, the employee must have been informed of the action in writing; second, the employee must have been given an opportunity to dispute the action by having it reviewed, on the merits, by an authority different from the one that took the action; and third, the action must be a matter of record. A Table of Penalties is a list of . If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. The first time an employee is This Quick Start Guide covers the following Key Points: 1. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r Any personal issues going on around the time of the misconduct should be brought to the attention of management. Conclusions and vague statements do not hold much weight with third parties. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. On the surface, many incidents of misconduct may seem to be similar. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. 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. 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. Factor: Notoriety and impact 3. %PDF-1.5 % 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. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 0 Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. hb```f``2c`a`,c`@ r, ^Ma 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. You need to look at the specifics of your case in light of the twelve factors. 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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. With responsibility comes greater obligation and scrutiny. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. The Douglas Factors should be considered in selecting a penalty. Merit Systems Protection Board still follows today. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Agency's table of penalties recognizes this severity in establishing ranges of penalties for U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. 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. 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. 2278 0 obj <>stream 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. The nature and seriousness of the offense, and its relationship to the employee's . 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. Ultimately, managers are people too. They likely held the same job you holdat some point in the past. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 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. (Use sample 1). 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.
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