table of penalties douglas factors

Has an employee been on the job for a long time? 49 0 obj <> endobj Just knowing the rules, however, cant fully protect you if a case should arise. This one is pretty self-explanatory. These factors are the following: 1. Additionally, this factor looks at intent. But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 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. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. 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. EachDouglas Factor can work for or against an employee depending on their specific case. 5 Douglas v. Veterans Administration, 5 M.S.P.R. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. 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. Did management send out a memo clarifying rules? 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. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. Suite 305 Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. The Douglas Factors . 8.Douglas Factor Analysis. Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. What every federal employee facing discipline should be familiar with: The Douglas Factors. The Federal Starr arms federal employees with the wisdom and insight to successfully navigate their career, create stability for themselves and their family, and continue on their mission to serve the public. past performance). Also any awards or accolades the employee has would be mitigating in nature. 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? Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. -What kind of recovery can I get in my discrimination case? 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. Yes___ No____How well informed an employee was of the rule that was violated is a factor that may have to be considered in determining the penalty. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. Ultimately, the more credible evidence you can provide to support your position the better. 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. Cir. The Douglas Factors: Disciplining employees is a fact of life. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 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 . This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. 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; Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? stream affidavits, performance ratings, SF-50s, letters of commendation) for the record. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. * Douglas v. Veterans Administration, 5 M.S.P.R. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor Cir. COPYRIGHT 2023. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 1985). Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 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 relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 2278 0 obj <>stream 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. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . 13.Receipt Certification: If hand-delivered: Sample: Please sign the acknowledgement of receipt below. Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. In theory, discipline should be both corrective and progressive. Cir. . Did the employee have access to a handbook that detailed proper procedure and policy? Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). As a general rule, the more negative publicity caused by an offense, the harsher the discipline. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a 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. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. These are known as Douglas factors. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. If you are low level employee with no supervisory functions this factor should have some mitigating value. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. 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. Managers must apply penalties that are similar to those imposed in like cases. 9 Ward v. U.S. 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. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. 3 0 obj This factor looks to the status of the employee. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. 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 . Federal government websites often end in .gov or .mil. 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. Visit WrightUSA.com to start your policy! This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 0 In many cases, managers act as deciding officials in discipline cases. Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . Sample 2: You have the right to review the material relied on to support this proposed removal. 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. . 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. Such cases call into question an employees ability to perform their specific job duties with integrity. 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. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Cir. <> Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 280, 290 (1981). If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. On (DATE), you were scheduled to report to work at (TIME). 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. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Govexec.com . 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. Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Conclusions and vague statements do not hold much weight with third parties. 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. Cir. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. endobj Be clear, terse, and apologetic. 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. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. disciplinary situations. 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. Negligent or accidental incidents will be viewed more favorably than intentional acts. 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. 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. 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). A mitigating factor is one that suggests the discipline be mitigated, or lowered. Specification #2. The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. The Table provides for more serious penalties for . 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. 1999). The Douglas factors are also referred to as mitigating factors. These factors are: 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.