table of penalties douglas factors
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. ______________________________ __________________ (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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Suite 305 Merit Systems Protection Board still follows today. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Let me give you an example. 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. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 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 fourth Douglas Factor requires managers to take an employees past performance into account. They likely held the same job you holdat some point in the past. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Discipline can range from letters of reprimand to short suspensions. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Visit WrightUSA.com to start your policy! Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 2012) (internal citations and punctuation omitted). i^G0OB 0_1_hF>hF>hFyhFyhH}1-|5Wc3[#o5[#o5C#<4C333c^4E#_|5W#_|5W#o5W#_|5qqE^ymF^ymF^ymF>{pC^ymF^ymu%+y]J^Wu%+y]J>WJ^W|k1JUU{N;:NwtDF"GQH D;KU#zY]Eq!,B!hdRt2)ZL@@@@@'EIKL.1bFL)]S)Y [ UX` -[ @n}[jr}Sr S=G @2@dfxj-BtAQ Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Relevant? Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Ultimately, managers are people too. Do they have a positive track record? In many cases, managers act as deciding officials in discipline cases. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( 7 Douglas v. Veterans Administration, 5 M.S.P.R. How does action taken promote the efficiency of the service? Your job as an employee is to support your position as best as you possibly can. 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. 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. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ The Douglas Factors should be considered in selecting a penalty. There are certain standards of behavior and conduct expected of employees by our external and internal customers. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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 . Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Did management send out a memo clarifying rules? 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 . If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). 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. Additionally, this factor looks at intent. WA A knowledge of the Douglas Factors is helpful for both federal employees and managers. Sample: Specification #1. A well presented reply to theproposed discipline can lead to substantial mitigation. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. 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. Explanation, if relevant: (5) The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties. The result will turn on the specifics of your case and the procedural posture as well. EAP can be reached by calling 1-800-XXX-XXXX. It is important that you really highlightthefactors that are in your favor. Managers must take an employees propensity for rehabilitation into account. This factor lends itself most to employees arguing for leniency in their case. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. Federal agencies may take disciplinary action against employees who engage in misconduct. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. 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. 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. COPYRIGHT 2023. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. 2015). If this is impractical to do, use Sample 2. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . However, despite the importance of these criteria, many employees arent familiar with them. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. 280 (1981) These factors are used to explain why the penalty was chosen. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Factor: Employee's . The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). 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. Cir. 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. 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. Discipline can range from letters of reprimand to short suspensions. After reading this guide, if you want to read further on the topic of federal employee discipline, you mayfind our guide toMSPB and discipline cases helpful. 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. Private sector cases are drastically different. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. A supervisor cannot just say it; he/she has to prove it. This one is pretty self-explanatory. Govexec.com . 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. The nature and seriousness of the offense, and its relationship to the employee's . If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. posted June 9, 2003. 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. Why can such behavior not be tolerated? Relevant? The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. A Table of Penalties is a list of . %PDF-1.5 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. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. -What kind of recovery can I get in my discrimination case? Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. What is effect of the misconduct charged? You should review the table to make sure that your discipline is in keeping with this table. This means you should provide objective facts to support your arguments if you can. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. How the factors will be applied in your disciplinary case depends on the specifics of your case. Did the employee have access to a handbook that detailed proper procedure and policy? The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. 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). Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. % In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The Table provides for more serious penalties for . The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. Conclusions and vague statements do not hold much weight with third parties. Your absence was not approved by your supervisor. A mitigating factor is one that suggests the discipline be mitigated, or lowered. Postal Service, 634 F.3d 1274, 1282 (Fed. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. 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 . Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. 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 . The Douglas Factors (wiki) are comprised of 12 different points of analysis which a federal manager must consider when they act as a deciding official in a discipline case. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. 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. past performance). While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees 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. The Federal Starr is a publication by Starr Wright USA. 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. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. With responsibility comes greater obligation and scrutiny. If the person signed for receipt of the letter include that information. Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. Note. <>/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>> The Douglas Factors . The Douglas factors 8. The first time an employee is 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? (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). 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 . But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. * Douglas v. Veterans Administration, 5 M.S.P.R. Relevant? To some extent, this is a subjective question. A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. Federal government websites often end in .gov or .mil. In addition, actions . Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Cir. Any replies submitted will be given full consideration. 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. 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. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. While each case is different, seeking alternatives may be useful. Additionally, your coworkers have their own assignments. Which is why Federal Employee Professional Liability Insurance is critical. 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. Has an employee been on the job for a long time? endobj If not, include delivery confirmation by the postal or delivery service. 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. This factor looks to the status of the employee. Do not deny the existence of bad facts. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. 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. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. By William N. Rudman . For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. endobj If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. 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. 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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! 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. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. Relevant? 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. These factors are the following: 1. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 49 0 obj <> endobj 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; endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. endobj 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 adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Before sharing sensitive information, make sure youre on a federal government site. 8.Douglas Factor Analysis. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. That translates into harsher penalties for repeat offenders. 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. past performance). Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. Berry & Berry PLLC. stream Agency's table of penalties recognizes this severity in establishing ranges of penalties for Cir. The .gov means its official. These are known as Douglas factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. 1999). Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency.