table of penalties douglas factors

For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Relevant? We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Do you need a table of penalties in OPM? Which is why Federal Employee Professional Liability Insurance is critical. 1 0 obj The consistency of the penalty with any applicable agency table of penalties; 8. 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. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 9 Ward v. U.S. 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. 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. For example, a law enforcement officer is charged with enforcing laws. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). See Douglas v. Veterans Administration, 5 M.S.P.R. Douglas Factor Analysis. The reason(s) for this action is (are) specified below. 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. The notoriety of the offense or its impact upon the reputation of the agency; . Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. What if I do not agree with managements analysisof a specific Douglas Factor? In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. Cir. In theory, discipline should be both corrective and progressive. An official website of the United States government. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Specific evidence/testimony as to why an employee can no longer be trusted is critical. Remain calm, deferential and respectful at all times. 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. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. The result will turn on the specifics of your case and the procedural posture as well. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. EAP can be reached by calling 1-800-XXX-XXXX. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Only relevant factors must be included. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. With responsibility comes greater obligation and scrutiny. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! However, if you properly argue this factor it can go a long way towards helping your case. Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. A supervisor cannot just say it; he/she has to prove it. hbbd``b`:$ Hd V$D? The fourth Douglas Factor requires managers to take an employees past performance into account. COPYRIGHT 2023. 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. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. What every federal employee facing discipline should be familiar with: The Douglas Factors. 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; . This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Only those Douglas Factors relevant to each case need be considered. !%7K81E8zi. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. They know the stress of a career, they know how life can be difficult. Starr Wright USA is the nations leading provider of FEPLI. The Table provides for more serious penalties for . Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). The .gov means its official. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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. 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. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Misconduct is also considered more severe if it is done maliciously or for personal gain. The nature and seriousness of the offense, and its relation to the employees 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 employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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; the potential for the employees rehabilitation; 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; and. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. 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. Cir. 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. 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 FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. endobj Factor 1: The nature and seriousness of the offense, and its relation to the employees 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. -What kind of recovery can I get in my discrimination case? When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Internal Control Evaluation, page 21 . 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. Plaza America In addition, actions . It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. However, the principle of "like penalties for like offenses" does not require perfect consistency. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 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. Factor 7: Consistency of the penalty with any applicable agency table of penalties. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Ultimately, the more credible evidence you can provide to support your position the better. Specification #2. These factors are the following: 1. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). Cir. 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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? The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Any replies submitted will be given full consideration. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. 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. 1999). 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 example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. On (DATE), you were scheduled to report to work at (TIME). Employees who can appeal an adverse action to the Board have constitutional due process rights. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. You neither came to work nor did you call in your absence. Your absence was not approved by your supervisor. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. . This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. How the factors will be applied in your disciplinary case depends on the specifics of your case. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. What is effect of the misconduct charged? 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. 5 Douglas v. Veterans Administration, 5 M.S.P.R. The more notorious the offense you commit the more severe the discipline you will face. 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. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). endobj One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. 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. A Table of Penalties is a list of . Reston, VA 20190. 1985). Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The key is credibility. 0 You will be notified in writing of the final decision. Govexec.com . 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 Douglas factor is important and we use this argument in our representation of federal employees. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 49 0 obj <> endobj This factor lends itself most to employees arguing for leniency in their case. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. 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 . This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 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. %PDF-1.6 % In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. You should review the table to make sure that your discipline is in keeping with this table. hb```f``2c`a`,c`@ r, ^Ma Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 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. 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. Why can such behavior not be tolerated? If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. 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. How do you handle these aggravating factors? To some extent, this is a subjective question. Relevant? Ultimately, managers are people too. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. WA 280 (1981) These factors are used to explain why the penalty was chosen. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Federal government websites often end in .gov or .mil. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. a. This Quick Start Guide covers the following Key Points: 1. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. 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? If you are low level employee with no supervisory functions this factor should have some mitigating value. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Factor 3: The employees past disciplinary record. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 280, 290 (1981). Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. % These are known as Douglas factors. Factor: Notoriety and impact 3. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. (Use sample 1). Has an employee been on the job for a long time? The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. In some instances, you may want to request that management reconsider your case. Factor: Consistency with table of penalties 2. 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. A well presented reply to theproposed discipline can lead to substantial mitigation. past performance). 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. 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.

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