table of penalties douglas factors
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 ? We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. The notoriety of the offense or its impact upon the reputation of the agency; . Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 280 (1981). 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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 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. 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. 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 . 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 3 Douglas v. Veterans Administration, 5 M.S.P.R. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 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. 1999). These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. If you are looking for a representative, note that we are not taking on any cases at this time. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Cir. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. This table should be available to you as an employee. Sample: Specification #1. These are known as Douglas factors. Yes___ No____This factor is one of the more technically difficult to apply. 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). yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. Plaza America 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. Cir. Let me give you an example. disciplinary situations. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. The Federal Starr is a publication by Starr Wright USA. 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. <>/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>> 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 . U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. 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. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. xfg! We need to specifically state why there is erosion of supervisory confidence. 3 0 obj The key is credibility. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. %PDF-1.6 % If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. 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. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. If you are low level employee with no supervisory functions this factor should have some mitigating value. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. Douglas Factors for Federal Employees - berrylegal That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Relevant? Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal 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. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. The result will turn on the specifics of your case and the procedural posture as well. Relevant? 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). 2 0 obj accruing multiple instances of discipline can lead you on the fast track to removal from federal service. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Can an employee take responsibility, correct their behavior and come back to the job? 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Heres what anyone who works for the federal government needs to know about the Douglas Factors. The Table provides for more serious penalties for . However, the principle of "like penalties for like offenses" does not require perfect consistency. 502, 508 (1994) (holding that because 31 U.S.C. 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. Cir. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. 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. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. This factor lends itself most to employees arguing for leniency in their case. 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. Private sector cases are drastically different. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. 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. PDF Douglas Factors In Depth - Letter Carrier Connection All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Consistency of the penalty with any table of penalties an agency may have . It is important to rebut these issues in a Douglas factor defense. This has often been considered one of the most important Douglas factors by the MSPB. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. There are certain standards of behavior and conduct expected of employees by our external and internal customers. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. PDF Douglas Factors In Depth - Branch 38 NALC You should not list a factor unless it is relevant. 280, 290 (1981). 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. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Factor: Consistency with table of penalties 2. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. Cir. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. 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. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Managers and supervisors should properly document the employee misconduct. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. How do you handle these aggravating factors? A mitigating factor is one that suggests the discipline be mitigated, or lowered. ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. * Douglas v. Veterans Administration, 5 M.S.P.R. 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. Has an employee been on the job for a long time? The .gov means its official. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Factor 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. Regardless, try to avoid getting into an argument with management over factors. 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. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. In theory, discipline should be both corrective and progressive. 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. Can someone help me present the Douglas Factors to management? For example, an allegation of dishonesty would be treated . 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. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE 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. Table Of Penalties Douglas Factors 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. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer Which is why Federal Employee Professional Liability Insurance is critical. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis.