table of penalties douglas factors

If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. hbbd``b`:$ Hd V$D? EachDouglas Factor can work for or against an employee depending on their specific case. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. Do you need a table of penalties in OPM? Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. 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. You should review the table to make sure that your discipline is in keeping with this table. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. ALL RIGHTS RESERVED. Cir. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). They likely held the same job you holdat some point in the past. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. 280 (1981) These factors are used to explain why the penalty was chosen. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 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. Cir. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Factor 10: Potential for the employees rehabilitation. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. Specification #2. 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. 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. This has often been considered one of the most important Douglas factors by the MSPB. a. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. 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. Relevant? Before sharing sensitive information, make sure youre on a federal government site. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. 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. posted June 9, 2003. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Discipline can range from letters of reprimand to short suspensions. 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. Cir. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. 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 factor deserves some detailed explanation since it is one of the less self-apparentof the factors. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Additionally, your coworkers have their own assignments. 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 site is secure. 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. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. ______________________________ __________________ (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. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. Check with your labor relations advisor. 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. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Conclusions and vague statements do not hold much weight with third parties. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Factor 3: The employees past disciplinary record. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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). It is more often used to attempt to aggravate a disciplinary penalty. 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. Cir. You should not list a factor unless it is relevant. For example, an allegation of dishonesty would be treated . Contact your employee relations advisor to get the information to fill in the blanks. 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. 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 Douglas Factors . hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). In theory, discipline should be both corrective and progressive. 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. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. How does action taken promote the efficiency of the service? A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. These are known as Douglas factors. Every case is different, so sometimes factors that really stand out in one case, have little to no significance in another. Plaza America The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . Employees who can appeal an adverse action to the Board have constitutional due process rights. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. However, if you properly argue this factor it can go a long way towards helping your case. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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. 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. Reston, VA 20190. 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. 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. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. 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 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 also consider the scope of the misconduct in the context of an employees position and job duties. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. Cir. Federal agencies may take disciplinary action against employees who engage in misconduct. Remain calm, deferential and respectful at all times. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. 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. 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. 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 https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. stream At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. We are currently not taking any new cases at this time. Private sector cases are drastically different. The nature and seriousness of the offense, and its relationship to the employee's . 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. Your absence was not approved by your supervisor. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. The employee's job level and type of employment . 2 0 obj The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The Douglas Factors . endstream endobj startxref 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. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. -What kind of recovery can I get in my discrimination case? 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. Do they have a positive track record? Cir. 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? Relevant? Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty.

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