table of penalties douglas factors

1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n 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. 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. What every federal employee facing discipline should be familiar with: The Douglas Factors. Internal Control Evaluation, page 21 . 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. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Factor: Nature and seriousness 9. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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. Managers and supervisors should properly document the employee misconduct. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Heres what anyone who works for the federal government needs to know about the Douglas Factors. Whether you use two charges in this case will depend upon the evidence available. 3 Douglas v. Veterans Administration, 5 M.S.P.R. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. Yes___ No____The analysis of this factor involves much more than a supervisor's statement that he/she has lost confidence in the employee. In addition, actions . 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. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. <>>> removal). PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army Federal government websites often end in .gov or .mil. Merit Systems Protection Board still follows today. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Factor 3: The employees past disciplinary record. The result will turn on the specifics of your case and the procedural posture as well. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Starr Wright USA is the nations leading provider of FEPLI. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. ALL RIGHTS RESERVED. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. 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. h[M+}LX,? Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Sample: Specification #1. 51, 8 (2001). The Federal Starr is a publication by Starr Wright USA. Other times it may mean providing some evidence to management to further support your position. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. 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. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. 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. Cir. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Such cases call into question an employees ability to perform their specific job duties with integrity. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). 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. 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. Factor 1: The nature and seriousness of the offense, and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. Federal agencies may take disciplinary action against employees who engage in 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. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. The fourth Douglas Factor requires managers to take an employees past performance into account. 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. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. 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. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. The Douglas factors 8. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com 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. Factor: Employee's . Ultimately, the more credible evidence you can provide to support your position the better. 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. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. Let me give you an example. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. This Douglas factor is not one of the more commonly cited Douglas factors. 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. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. 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). Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. The national media picked the story up, and it was very detrimental to the agency. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. While each case is different, seeking alternatives may be useful. 280, 305-06 (1981). Relevant? PDF DOI Department Manual Table of Offenses and Penalties 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. If this is impractical to do, use Sample 2. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. Cir. Additionally, your coworkers have their own assignments. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . 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. { 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. 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. 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. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. Visit WrightUSA.com to start your policy! 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. Your absence was not approved by your supervisor. When looking for an attorney make sure they have experience handling federal-sector employment cases. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties 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. Cir. Misconduct is also considered more severe if it is done maliciously or for personal gain. Govexec.com . The right to answer orally does not include the right to a formal hearing with examination of witnesses. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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 . PDF Committee on Oversight and Government Reform U.S. House of A knowledge of the Douglas Factors is helpful for both federal employees and managers. Private sector cases are drastically different. We need to specifically state why there is erosion of supervisory confidence. 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). MSPB decision. They know the stress of a career, they know how life can be difficult. Similar offenses can be used to guide penalty selection. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. 2 0 obj 2278 0 obj <>stream past performance). 1999). 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. You will be notified in writing of the final decision. 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. Producing a doctors note to management confirming the hospitalization supports the validity of your claim and will be harder for management to overlook than had you just made a verbal assertion of the same. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases).

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