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. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. There are certain standards of behavior and conduct expected of employees by our external and internal customers. You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. <>>> 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. What kind of recovery can I get in my discrimination case? Federal agencies may take disciplinary action against employees who engage in misconduct. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. The key is credibility. 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. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. 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. A knowledge of the Douglas Factors is helpful for both federal employees and managers. If this is impractical to do, use Sample 2. Douglas Factor Mitigation for Federal Employees EachDouglas Factor can work for or against an employee depending on their specific case. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Reston, VA 20190. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? 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. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. Just knowing the rules, however, cant fully protect you if a case should arise. ^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. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. <> That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. We are currently not taking any new cases at this time. 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 . Managers must take an employees propensity for rehabilitation into account. COPYRIGHT 2023. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . PDF Douglas Factors - AFGE Relevant? 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? Explanation, if relevant: (3) The employee's past disciplinary record.Relevant? 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. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. If you are low level employee with no supervisory functions this factor should have some mitigating value. Before sharing sensitive information, make sure youre on a federal government site. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Can someone help me present the Douglas Factors to management? Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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. Let me give you an example. This has often been considered one of the most important Douglas factors by the MSPB. 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. You should not list a factor unless it is relevant. 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). Only those Douglas Factors relevant to each case need be considered. How do you handle these aggravating factors? Factor 10: Potential for the employees rehabilitation. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. This article covers the Douglas Factors. 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. They likely held the same job you holdat some point in the past. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 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. You will be notified in writing of the final decision. Misconduct and Discipline | U.S. Department of the Interior Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . past performance). See Douglas v. Veterans Administration, 5 M.S.P.R. Misconduct is also considered more severe if it is done maliciously or for personal gain. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Table Of Penalties Douglas Factors 280, 290 (1981). The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. If you have been disciplined before you will face harsher discipline going forward. 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. The nature and seriousness of the offense, and its relationship to the employee's . yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Relevant? Offenses related to intoxicants. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz Relevant? The .gov means its official. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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. 280 (1981) These factors are used to explain why the penalty was chosen. A well presented reply to theproposed discipline can lead to substantial mitigation. 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. 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. Cir. 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. Factor 3: The employees past disciplinary record. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. %%EOF Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. However, the principle of "like penalties for like offenses" does not require perfect consistency. 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. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. All other facts the same, you would want to point this inconsistency to managements attention because it is clear the two penalties are not consistent with each other. Yes___ No____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. For example, a law enforcement officer is charged with enforcing laws. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. 1 0 obj This Quick Start Guide covers the following Key Points: 1. That translates into harsher penalties for repeat offenders. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Berry & Berry PLLC. The Federal Starr is a publication by Starr Wright USA. Specific evidence/testimony as to why an employee can no longer be trusted is critical. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Which is why Federal Employee Professional Liability Insurance is critical. An official website of the United States government. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Additionally, your coworkers have their own assignments. 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. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. %PDF-1.5 % The consistency of the penalty with any applicable agency table of penalties; 8. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 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). At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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? Relevant? Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. If the person signed for receipt of the letter include that information. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. We need to specifically state why there is erosion of supervisory confidence. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. 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. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 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 . -What kind of recovery can I get in my discrimination case? ALL RIGHTS RESERVED. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. On (DATE), you were scheduled to report to work at (TIME). PDF Douglas Factors In Depth - Branch 38 NALC Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? What every federal employee facing discipline should be familiar with: The Douglas Factors. But do not highlight them either. 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. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Your absence was not approved by your supervisor. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Your absence was not approved by your supervisor. The Douglas Factors should be considered in selecting a penalty. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Internal Control Evaluation, page 21 . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ 51, 8 (2001). 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; the employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; the employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; the effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees work ability to perform assigned duties; consistency of the penalty with those imposed upon other employees for the same or similar offenses; consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency; 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 potential for the employees rehabilitation; mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. These factors are: 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. Merit Systems Protection Board still follows today. The notoriety of the offense or its impact upon the reputation of the agency; . Did management send out a memo clarifying rules? Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. 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 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. 0 Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. 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 . 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. You neither came to work nor did you call in your absence. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream How does action taken promote the efficiency of the service? Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 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. PDF The Douglas Factors - Energy
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