table of penalties douglas factors

Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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? Factor: Notoriety and impact 3. Douglas Factor Mitigation for Federal Employees As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. For instance, did the employee have access to the table of penalties? ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. 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? On (DATE), you were scheduled to report to work at (TIME). 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; . 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. A supervisor cannot just say it; he/she has to prove it. Specific evidence/testimony as to why an employee can no longer be trusted is critical. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 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. 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. Any replies submitted will be given full consideration. 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. Managers and supervisors should properly document the employee misconduct. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. This has often been considered one of the most important Douglas factors by the MSPB. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. 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. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Specification #2. endobj 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. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. 2012) (internal citations and punctuation omitted). % Be clear, terse, and apologetic. 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 notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. PDF Douglas Factors - AFGE It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. 11700 Plaza America Drive Postal Service, 634 F.3d 1274, 1282 (Fed. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Federal agencies may take disciplinary action against employees who engage in misconduct. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). The reason(s) for this action is (are) specified below. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . The first time an employee is 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 . Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. Deciding officials should do a Douglas analysis in every case, except when Congress . 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. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. However, despite the importance of these criteria, many employees arent familiar with them. Consistency of the penalty with any applicable agency table of penalties; 8. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 1 0 obj The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. The right to answer orally does not include the right to a formal hearing with examination of witnesses. @b o $&F Sq70 # You should not list a factor unless it is relevant. 7 Douglas v. Veterans Administration, 5 M.S.P.R. Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. These are known as Douglas factors. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. The Table provides for more serious penalties for . 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. What if I do not agree with managements analysisof a specific Douglas Factor? One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The notoriety of the offense or its impact upon the reputation of the agency; . the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Additionally, this factor looks at intent. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. generadores de diesel precios Your absence was not approved by your supervisor. PDF The Douglas Factors - National Federation of Federal Employees Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. 280 (1981) These factors are used to explain why the penalty was chosen. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. WA Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. If you want you can download and read the fullDouglas v. V.A. %%EOF The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 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? Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Factor 3: The employees past disciplinary record. Did management send out a memo clarifying rules? For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Similar offenses can be used to guide penalty selection. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. 9 Ward v. U.S. The .gov means its official. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Also any awards or accolades the employee has would be mitigating in nature. Cir. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream That translates into harsher penalties for repeat offenders. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. Remain calm, deferential and respectful at all times. <> What is effect of the misconduct charged? Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. How do you handle these aggravating factors? For example, an allegation of dishonesty would be treated . Table Of Penalties Douglas Factors The idea is that discipline is meantto be corrective and progressive. xfg! 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. what extent, the "Douglas" factors come into play or how egregious the act was. stream h[M+}LX,? What is the table of penalties? - idswater.com Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. The fourth Douglas Factor requires managers to take an employees past performance into account. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. You neither came to work nor did you call in your absence. Sample 1: I have attached the material relied on to support this proposed removal. 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. Relevant? 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. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for PDF Douglas Factors In Depth - Branch 38 NALC 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. Douglas Factors - Postal Reporter You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. 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; Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Relevant? Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. past performance). Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Merit Systems Protection Board still follows today. 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. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees When looking for an attorney make sure they have experience handling federal-sector employment cases. Cir. A well presented reply to theproposed discipline can lead to substantial mitigation. What kind of recovery can I get in my discrimination case? This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. This Douglas factor is important and we use this argument in our representation of federal employees. The key is credibility. This article covers the Douglas Factors. 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. It is important that you really highlightthefactors that are in your favor. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Other times it may mean providing some evidence to management to further support your position. 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 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 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. You neither came to work nor did you call in your absence. Regardless, try to avoid getting into an argument with management over factors. 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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized.

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