table of penalties douglas factors
Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. 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. This factor looks to the status of the employee. 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. On the surface, many incidents of misconduct may seem to be similar. 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 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. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Cir. Management has likely even required you to review the table and sign a form asserting your knowledge of it. -What kind of recovery can I get in my discrimination case? Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. In many cases, managers act as deciding officials in discipline cases. Managers must take an employees propensity for rehabilitation into account. A Table of Penalties is a list of . Cir. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Only those Douglas Factors relevant to each case need be considered. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Sometimes management may misapply factors, or misconstrue them. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. Be clear, terse, and apologetic. 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. 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. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. A deciding official must consider specific factors in determining the reasonableness of the penalty. This means you should provide objective facts to support your arguments if you can. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. %PDF-1.5 Has an employee been on the job for a long time? Specification #2. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Sample: Specification #1. What is effect of the misconduct charged? The key inquiry here is whether like and similar cases have resulted in close-to-the-same discipline you are facing in your case. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ Federal agencies may take disciplinary action against employees who engage in misconduct. 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. Note. Additionally, this factor looks at intent. 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. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. A mitigating factor is one that suggests the discipline be mitigated, or lowered. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Factor 10: Potential for the employees rehabilitation. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . To some extent, this is a subjective question. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Cir. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Whether you use two charges in this case will depend upon the evidence available. 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. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? When looking for an attorney make sure they have experience handling federal-sector employment cases. See Douglas v. Veterans Administration, 5 M.S.P.R. You should not list a factor unless it is relevant. You should review the table to make sure that your discipline is in keeping with this table. 1999). 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. Factor: Notoriety and impact 3. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . They likely held the same job you holdat some point in the past. 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. Reston, VA 20190. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Relevant? 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. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. A knowledge of the Douglas Factors is helpful for both federal employees and managers. How the factors will be applied in your disciplinary case depends on the specifics of your case. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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? 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Sample 1: I have attached the material relied on to support this proposed removal. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. For more information, visit WrightUSA.com. endstream endobj startxref The notoriety of the offense or its impact upon the reputation of the Agency; 9 . 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. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. Sample 2: You have the right to review the material relied on to support this proposed removal. Ultimately, the more credible evidence you can provide to support your position the better. Therefore, I am proposing your removal from the Federal service to promote the efficiency of the service. Agency's table of penalties recognizes this severity in establishing ranges of penalties for (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. 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. Govexec.com . Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. ^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. However, the principle of "like penalties for like offenses" does not require perfect consistency. Factor 11: 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. Let me give you an example. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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. 2015). 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. The Douglas factors are also referred to as mitigating factors. 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. Other times it may mean providing some evidence to management to further support your position. 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. Private sector cases are drastically different. Your absence was not approved by your supervisor. 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. The Federal Starr is a publication by Starr Wright USA. <>/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>> 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. 0 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. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Discipline can range from letters of reprimand to short suspensions. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. 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. 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. But do not highlight them either. Yes___ No____This factor is one of the more technically difficult to apply. 2 0 obj 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. This Factor takes mitigating circumstances into account. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. 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 . The result will turn on the specifics of your case and the procedural posture as well. Can an employee take responsibility, correct their behavior and come back to the job? Managers must apply penalties that are similar to those imposed in like cases. 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. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. 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. Ability to perform, and supervisory confidence, Consistency of the penalty with other cases, Consistency of the penalty with agencys table of penalties and offenses, Adequacy and effectiveness of alternative sanctions, Applying the Douglas Factorsto your case. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. What if I do not agree with managements analysisof a specific Douglas Factor? Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. 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. 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. endobj 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. 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. 280 (1981). Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 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. 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. After you have this list it should become pretty clear to you which Douglas Factors you want to focus on with management. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 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. 280 (1981) These factors are used to explain why the penalty was chosen. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 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? 49 0 obj <> endobj 280, 290 (1981). Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. %PDF-1.6 % A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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. It is more often used to attempt to aggravate a disciplinary penalty. Relevant? Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. 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). xfg! Such cases call into question an employees ability to perform their specific job duties with integrity. Did the employee have access to a handbook that detailed proper procedure and policy? 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. You will be notified in writing of the final decision. For example, a law enforcement officer is charged with enforcing laws. Offenses related to intoxicants. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Factor 7: Consistency of the penalty with any applicable agency table of penalties. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. Your job as an employee is to support your position as best as you possibly can. 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. This Douglas factor is important and we use this argument in our representation of federal employees. Postal Service, 634 F.3d 1274, 1282 (Fed. They know the stress of a career, they know how life can be difficult. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Relevant? Lets say you missed a deadline for an important assignment and management has proposed removal. Employees who can appeal an adverse action to the Board have constitutional due process rights. 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). 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz How does action taken promote the efficiency of the service? When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. The Douglas Factors should be considered in selecting a penalty.
table of penalties douglas factors