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. EachDouglas Factor can work for or against an employee depending on their specific case. endstream endobj startxref 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. <>/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>> Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). a. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Do you need a table of penalties in OPM? affidavits, performance ratings, SF-50s, letters of commendation) for the record. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . But do not highlight them either. In some instances, you may want to request that management reconsider your case. 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Cir. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. They likely held the same job you holdat some point in the past. 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. 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. 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. The fourth Douglas Factor requires managers to take an employees past performance into account. Cir. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. 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. Douglas Factor Analysis. 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. On the surface, many incidents of misconduct may seem to be similar. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. 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. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. 49 0 obj <> endobj 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. On (DATE), you were scheduled to report to work at (TIME). This table should be available to you as an employee. Obtain insurance protection for your career today. 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? 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. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). 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. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. 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. 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? The more notorious the offense you commit the more severe the discipline you will face. You neither came to work nor did you call in your absence. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. ^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. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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. It is more often used to attempt to aggravate a disciplinary penalty. The Douglas Factors . Negligent or accidental incidents will be viewed more favorably than intentional acts. . A Table of Penalties is a list of . 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. The site is secure. 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. 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. 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. xfg! The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Starr Wright USA is the nations leading provider of FEPLI. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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 . 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. The result will turn on the specifics of your case and the procedural posture as well. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Factor 10: Potential for the employees rehabilitation. 280 (1981). You will be notified in writing of the final decision. This Factor takes mitigating circumstances into account. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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; 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. See U.S. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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. 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. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Cir. 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. 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 the person signed for receipt of the letter include that information. Your job as an employee is to support your position as best as you possibly can. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. The key is credibility. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Relevant? Discipline can range from letters of reprimand to short suspensions. 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. 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. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r 5 Douglas v. Veterans Administration, 5 M.S.P.R. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. ______________________________ __________________ (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. The nature and seriousness of the offense, and its relationship to the employee's . Has an employee been on the job for a long time? Did management send out a memo clarifying rules? posted June 9, 2003. Merit Systems Protection Board still follows today. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). This is because it puts you on notice of the penalties which is factor #9, below. These 12 factors play a key role in the outcome of federal employee discipline cases. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. By William N. Rudman . accruing multiple instances of discipline can lead you on the fast track to removal from federal service. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. A deciding official must consider specific factors in determining the reasonableness of the penalty. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The reason(s) for this action is (are) specified below. 1985). Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. 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. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. In addition, actions . At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Relevant? such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may Any personal issues going on around the time of the misconduct should be brought to the attention of management. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Internal Control Evaluation, page 21 . %PDF-1.5 % Ultimately, managers are people too. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Can an employee take responsibility, correct their behavior and come back to the job? The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 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. While each case is different, seeking alternatives may be useful. In many cases, managers act as deciding officials in discipline cases. If you have been disciplined before you will face harsher discipline going forward. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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. If you list a factor you must explain why it is relevant. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Just knowing the rules, however, cant fully protect you if a case should arise. 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. 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. 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. Be clear, terse, and apologetic. <> However, despite the importance of these criteria, many employees arent familiar with them. 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. %PDF-1.5 Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. endobj Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc. https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm, https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT, https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf. 1 0 obj Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). When looking for an attorney make sure they have experience handling federal-sector employment cases. Suite 305 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. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. You neither came to work nor did you call in your absence. If not, include delivery confirmation by the postal or delivery service. 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. 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. 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. Plaza America 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. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. %PDF-1.6 % Remain calm, deferential and respectful at all times. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. 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 . Govexec.com . This one is pretty self-explanatory. 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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 . You should review the table to make sure that your discipline is in keeping with this table. The Douglas factors 8. EAP can be reached by calling 1-800-XXX-XXXX. Regardless, try to avoid getting into an argument with management over factors. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Factor 3: The employees past disciplinary record. Cir. Also any awards or accolades the employee has would be mitigating in nature. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. 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. 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 . 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. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 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. 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. 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. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Contact your employee relations advisor to get the information to fill in the blanks. Lets say you missed a deadline for an important assignment and management has proposed removal. Let me give you an example. 72 0 obj <>stream The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Douglas Factors matters vary from case to case and federal employees should consult with an attorney.
Betty Yee State Controller Disbursements Bureau,
What Happened To Harry Smith Cbs News,
Western Star White Paint Code,
Georgia Tech Deferral Rate 2021,
Articles T