table of penalties douglas factors

Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The employee's job level and type of employment . 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. @b o $&F Sq70 # Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. If you are low level employee with no supervisory functions this factor should have some mitigating value. These terms are used commonly in Douglas Factors application. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. In addition, actions . ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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. 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. For example, a law enforcement officer is charged with enforcing laws. removal). 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. Any personal issues going on around the time of the misconduct should be brought to the attention of management. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. Managers must take an employees propensity for rehabilitation into account. 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? 4 0 obj The nature and seriousness of the offense, and its relationship to the employee's . consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. WA 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. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . a. 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. 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. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. <> 280 (1981) These factors are used to explain why the penalty was chosen. Explanation, if relevant: (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. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. 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. It is important that you really highlightthefactors that are in your favor. The final Douglas Factor asks both manager and employee to consider alternative penalties. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Cir. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). MSPB decision. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. We need to specifically state why there is erosion of supervisory confidence. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. Factor: Employee's . %%EOF Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. By William N. Rudman . disciplinary situations. 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. Sample 2: You have the right to review the material relied on to support this proposed removal. 280, 290 (1981). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. 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. 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. 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. The first time an employee is the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Factor 7: Consistency of the penalty with any applicable agency table of penalties. 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. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Please designate your representative, if any, by name, address, position, and employer in a signed statement, and forward that statement to (Deciding Official's Name) at the above stated address, before the expiration of the reply period. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 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. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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 . For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. 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. 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. These factors are the following: 1. %PDF-1.6 % 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. 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. 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. Cir. 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 . The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. 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. Starr Wright USA is the nations leading provider of FEPLI. 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. You will be notified in writing of the final decision. 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. 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. What is effect of the misconduct charged? 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 an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. How do you handle these aggravating factors? 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 . Sometimes management may misapply factors, or misconstrue them. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. 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. This factor looks to the status of the employee. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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. 2015). Relevant? Managers must also consider the scope of the misconduct in the context of an employees position and job duties. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ The Douglas factors are also referred to as mitigating factors. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 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. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. Moreover, I believe most, if not all, of the employees involved were removed or resigned from federal service. Yes___ No____This factor is one of the more technically difficult to apply. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. If you want you can download and read the fullDouglas v. V.A. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Specification #2. 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: (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? A federal agencys table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Remain calm, deferential and respectful at all times. Check with your labor relations advisor. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. endobj This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. This is because it puts you on notice of the penalties which is factor #9, below. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. A deciding official must consider specific factors in determining the reasonableness of the penalty. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Misconduct is also considered more severe if it is done maliciously or for personal gain. 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Visit WrightUSA.com to start your policy! 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. Did the employee have access to a handbook that detailed proper procedure and policy? Douglas Factors matters vary from case to case and federal employees should consult with an attorney.

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