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. This Douglas factor is important and we use this argument in our representation of federal employees. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). %PDF-1.5 % This Factor takes mitigating circumstances into account. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Press Briefing by Press Secretary Karine Jean-Pierre Douglas Factors In Depth The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining . Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com 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. This is because it puts you on notice of the penalties which is factor #9, below. past performance). An official website of the United States government. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. past performance). If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Has an employee been on the job for a long time? The Douglas Factors - Melville Johnson disciplinary situations. It is important that you really highlightthefactors that are in your favor. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The Federal Starr is a publication by Starr Wright USA. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Douglas Factors for Federal Employees - Berry & Berry, PLLC - berrylegal The first time an employee is 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. generadores de diesel precios 2 0 obj 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. 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. 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. Specific evidence/testimony as to why an employee can no longer be trusted is critical. 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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 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. Misconduct and Discipline | U.S. Department of the Interior In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 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. Managers and supervisors should properly document the employee misconduct. Check with your labor relations advisor. The right to answer orally does not include the right to a formal hearing with examination of witnesses. Remain calm, deferential and respectful at all times. Do you need a table of penalties in OPM? If the person signed for receipt of the letter include that information. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Your absence was not approved by your supervisor. But they may refuse to. How do you handle these aggravating factors? 1999). This means you should provide objective facts to support your arguments if you can. Conclusions and vague statements do not hold much weight with third parties. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. Did the employee have access to a handbook that detailed proper procedure and policy? <>>> 3 0 obj PDF The Douglas Factors - Energy 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. % The result will turn on the specifics of your case and the procedural posture as well. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). 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. 9 Ward v. U.S. Sometimes management may misapply factors, or misconstrue them. Douglas Factors - Postal Reporter Many federal agencies maintain tables of penalties that detail discipline options for common offenses. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter stream It is important to rebut these issues in a Douglas factor defense. 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 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 . Sample: Specification #1. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. In some instances, you may want to request that management reconsider your case. The reason(s) for this action is (are) specified below. 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. 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. Postal Service, 634 F.3d 1274, 1279 (Fed. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Note. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. PDF Committee on Oversight and Government Reform U.S. House of 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). 280, 302 (1981). The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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; Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Internal Control Evaluation, page 21 . endobj Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. affidavits, performance ratings, SF-50s, letters of commendation) for the record. 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. 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. 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. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.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. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Why can such behavior not be tolerated? If you are low level employee with no supervisory functions this factor should have some mitigating value. Consistency of the penalty with any table of penalties an agency may have . The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. ______________________________ __________________ (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. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Starr Wright USA is the nations leading provider of FEPLI. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. endobj Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). 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. 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. A supervisor cannot just say it; he/she has to prove it. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer 1985). See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 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 first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. What is effect of the misconduct charged? Visit WrightUSA.com to start your policy! hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Factor: Consistency with table of penalties 2. You neither came to work nor did you call in your absence. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. 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. 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. 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. Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. By William N. Rudman . If you list a factor you must explain why it is relevant. When looking for an attorney make sure they have experience handling federal-sector employment cases. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army

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