table of penalties douglas factors

1 What every federal employee facing discipline should be familiar with: The Douglas Factors. ALL RIGHTS RESERVED. 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. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. 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. Don't force misconduct into a listed offense unless it accurately fits. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Postal Service, 634 F.3d 1274, 1282 (Fed. PDF DOI Department Manual Table of Offenses and Penalties 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. <> hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. 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 . Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Factor 7: Consistency of the penalty with any applicable agency table of penalties. Obtain insurance protection for your career today. WA Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. If you list a factor you must explain why it is relevant. Negligent or accidental incidents will be viewed more favorably than intentional acts. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 10 Ward v. U.S. 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. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. If not, include delivery confirmation by the postal or delivery service. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This is because it puts you on notice of the penalties which is factor #9, below. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The Douglas 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. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. 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. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. How does action taken promote the efficiency of the service? PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Check with your labor relations advisor. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Do you need a table of penalties in OPM? The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Douglas Factors in Federal Employment - InformedFED These are known as Douglas factors. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. 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. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 280 (1981) These factors are used to explain why the penalty was chosen. 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. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 1 0 obj The Douglas factors are also referred to as mitigating factors. However, if you properly argue this factor it can go a long way towards helping your case. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Table Of Penalties Douglas Factors Only relevant factors must be included. Relevant? Relevant? 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. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Cir. 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. Factor: Consistency with table of penalties 2. Do they have a positive track record? But do not highlight them either. 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. %%EOF Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. The nature and seriousness of the offense, and its relationship to the employee's . the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Managers must apply penalties that are similar to those imposed in like cases. 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Federal agencies may take disciplinary action against employees who engage in misconduct. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). Whether you use two charges in this case will depend upon the evidence available. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. @b o $&F Sq70 # <>/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>> 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? Contact your employee relations advisor to get the information to fill in the blanks. 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. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. Factor: Notoriety and impact 3. PDF Chapter 4. Hud Table of Offenses and Penalties The Douglas Factors explained, the keys to a discipline case - Ivancie Law That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. With responsibility comes greater obligation and scrutiny. 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 What if I do not agree with managements analysisof a specific Douglas Factor? 51, 8 (2001). One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. 3 0 obj A mitigating factor is one that suggests the discipline be mitigated, or lowered. Other times it may mean providing some evidence to management to further support your position. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Also any awards or accolades the employee has would be mitigating in nature. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer 49 0 obj <> endobj Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. However, despite the importance of these criteria, many employees arent familiar with them. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. If you want you can download and read the fullDouglas v. V.A. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 4.Charge: (Alleged misconduct - the reason the action is being proposed) Samples: Charge: Unauthorized Absence(Number of offense if applicable) or Charge: Unauthorized Absence Third Offense 5.Specification(s): The facts and evidence that establish the misconduct charged took place. endobj The Douglas Factors: What You Need to Know - Medium We need to specifically state why there is erosion of supervisory confidence. Do not deny the existence of bad facts. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 2015). 280, 305-06 (1981). The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal %PDF-1.6 % 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 is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. 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. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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 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. 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. Regardless, try to avoid getting into an argument with management over factors. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Relevant? Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. 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. removal). An official website of the United States government. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? However, the principle of "like penalties for like offenses" does not require perfect consistency. PDF Douglas Factors In Depth - Letter Carrier Connection Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army The Douglas factors 8. 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. 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). 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 site is secure. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 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. On (DATE), you were scheduled to report to work at (TIME). Factor 3: The employees past disciplinary record. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army Discipline can range from letters of reprimand to short suspensions. When looking for an attorney make sure they have experience handling federal-sector employment cases. Press Briefing by Press Secretary Karine Jean-Pierre Additionally, this factor looks at intent. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. 3 Douglas v. Veterans Administration, 5 M.S.P.R.

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