table of penalties douglas factors

stream In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Additionally, this factor looks at intent. . This Factor takes mitigating circumstances into account. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. You should not list a factor unless it is relevant. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Go through each Douglas Factorand try to write down points that arein your favor and points that are not in your favor for each one. Relevant? Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Agency's table of penalties recognizes this severity in establishing ranges of penalties for 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. 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. <> So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. For example, a law enforcement officer is charged with enforcing laws. 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. If that clerk is thencaught stealing from another employee or scalping a few dollars off of each days transactions, that would clearly call in to question his ability to perform as a clerkgoing forward. Only those Douglas Factors relevant to each case need be considered. Cir. @b o $&F Sq70 # What is effect of the misconduct charged? In many cases, managers act as deciding officials in discipline cases. In theory, discipline should be both corrective and progressive. Factor: Employee's . There are certain standards of behavior and conduct expected of employees by our external and internal customers. If an employee was experiencing stressful situations such as a mental health issue, divorce or a death in the family that contributed to the offense, they may present those and ask for leniency. Whether you use two charges in this case will depend upon the evidence available. Relevant? ^K[i>P+hvSbfpNK"ly(O$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. The final Douglas Factor asks both manager and employee to consider alternative penalties. 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 . Opinions expressed in this article are for informational purposes only and do not constitute legal advice. This Quick Start Guide covers the following Key Points: 1. Agency's table of penalties recognizes this severity in establishing ranges of penalties for See Douglas v. Veterans Administration, 5 M.S.P.R. It is important that you really highlightthefactors that are in your favor. The Douglas Factors: Disciplining employees is a fact of life. 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. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? 280, 302 (1981). These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. The site is secure. 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 also referred to as mitigating factors. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. removal). 1 0 obj Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. 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. Don't force misconduct into a listed offense unless it accurately fits. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 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. @ 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 . Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 3 Douglas v. Veterans Administration, 5 M.S.P.R. 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. 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. 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. 1999). This Douglas factor is not one of the more commonly cited Douglas factors. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. 280 (1981) These factors are used to explain why the penalty was chosen. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P 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. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Other times it may mean providing some evidence to management to further support your position. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. If the person signed for receipt of the letter include that information. The Douglas Factors . Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? If you are low level employee with no supervisory functions this factor should have some mitigating value. 5 Douglas v. Veterans Administration, 5 M.S.P.R. 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. Obtain insurance protection for your career today. The potential for an employees rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. 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 ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. You should review the table to make sure that your discipline is in keeping with this table. 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. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Factor 10: Potential for the employees rehabilitation. Alcohol-related: (1) Unauthorized possession of alcoholic beverages while on VA premises. Cir. 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. Sometimes management may misapply factors, or misconstrue them. 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; EachDouglas Factor can work for or against an employee depending on their specific case. 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. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Reston, VA 20190. 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. 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. You need to look at the specifics of your case in light of the twelve factors. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. Did management send out a memo clarifying rules? 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.

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