table of penalties douglas factors

Douglas Factor Analysis. They know the stress of a career, they know how life can be difficult. Relevant? These terms are used commonly in Douglas Factors application. 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. 49 0 obj <> endobj For example, a law enforcement officer is charged with enforcing laws. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Sample 1: I have attached the material relied on to support this proposed removal. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Can someone help me present the Douglas Factors to management? In some instances, you may want to request that management reconsider your case. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 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. You should review the table to make sure that your discipline is in keeping with this table. 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. Relevant? 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 . If this is impractical to do, use Sample 2. 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. past performance). The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 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. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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 employee's job level and type of employment . Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The Douglas Factors . These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. This factor looks to the status of the employee. Cir. Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 280 (1981) These factors are used to explain why the penalty was chosen. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. 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 . A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. . Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. That translates into harsher penalties for repeat offenders. If you want you can download and read the fullDouglas v. V.A. See Douglas v. Veterans Administration, 5 M.S.P.R. ALL RIGHTS RESERVED. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. With responsibility comes greater obligation and scrutiny. While each case is different, seeking alternatives may be useful. 502, 508 (1994) (holding that because 31 U.S.C. COPYRIGHT 2023. 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; If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 2015). 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. It is important that you really highlightthefactors that are in your favor. 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. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Sample: Specification #1. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. ______________________________ __________________ (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. 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. 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. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers. Such cases call into question an employees ability to perform their specific job duties with integrity. However, if you properly argue this factor it can go a long way towards helping your case. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Don't force misconduct into a listed offense unless it accurately fits. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. Starr Wright USA is the nations leading provider of FEPLI. 280 (1981) These factors are used to explain why the penalty was chosen. 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. Consistency of the penalty with any applicable agency table of penalties; 8. This table should be available to you as an employee. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Check with your labor relations advisor. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. The Douglas Factors . We need to specifically state why there is erosion of supervisory confidence. 4 0 obj 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. 280, 305-06 (1981). 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. Additionally, this factor looks at intent. 1985). The right to answer orally does not include the right to a formal hearing with examination of witnesses. Relevant? If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. 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. But do not highlight them either. 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. Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. When looking for an attorney make sure they have experience handling federal-sector employment cases. The result will turn on the specifics of your case and the procedural posture as well. Management has likely even required you to review the table and sign a form asserting your knowledge of it. 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. Do you need a table of penalties in OPM? 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. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. Sample 2: You have the right to review the material relied on to support this proposed removal. Your absence was not approved by your supervisor. Cir. 1999). Additionally, your coworkers have their own assignments. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Which is why Federal Employee Professional Liability Insurance is critical. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. There are certain standards of behavior and conduct expected of employees by our external and internal customers. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Federal agencies may take disciplinary action against employees who engage in misconduct. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. 280, 302 (1981). Relevant? 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. 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. Factor: Consistency with table of penalties 2. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. Postal Service, 634 F.3d 1274, 1279 (Fed. This Quick Start Guide covers the following Key Points: 1. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 5 Douglas v. Veterans Administration, 5 M.S.P.R. Employees who can appeal an adverse action to the Board have constitutional due process rights. Did the employee have access to a handbook that detailed proper procedure and policy? Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. Relevant? Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. On the surface, many incidents of misconduct may seem to be similar. Any replies submitted will be given full consideration. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Federal government websites often end in .gov or .mil. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. Cir. The Douglas factors are also referred to as mitigating factors. <>>> An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. These factors are the following: 1. 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. These are known as Douglas factors. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. 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. Has an employee been on the job for a long time? This has often been considered one of the most important Douglas factors by the MSPB. What every federal employee facing discipline should be familiar with: The Douglas Factors. * Douglas v. Veterans Administration, 5 M.S.P.R. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his 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). 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. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. Did management send out a memo clarifying rules? Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Similar offenses can be used to guide penalty selection. The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the statute being used by the agency to authorize the adverse action. WA This Factor takes mitigating circumstances into account. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Govexec.com . Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Berry & Berry PLLC. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Negligent or accidental incidents will be viewed more favorably than intentional acts. Only relevant factors must be included. removal). 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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 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. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. Deciding officials should do a Douglas analysis in every case, except when Congress . Do they have a positive track record? past performance). Agency's table of penalties recognizes this severity in establishing ranges of penalties for 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 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 . 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. alpha jym discontinued, town of mooresville land development standards, shannon titus obituary,

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