table of penalties douglas factors

Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 5 Douglas v. Veterans Administration, 5 M.S.P.R. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 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. 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. Regardless, try to avoid getting into an argument with management over factors. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? Cir. This factor lends itself most to employees arguing for leniency in their case. Sample 1: I have attached the material relied on to support this proposed removal. 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. 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. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. You should review the table to make sure that your discipline is in keeping with this table. hb```f``2c`a`,c`@ r, ^Ma The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Lets say you missed a deadline for an important assignment and management has proposed removal. This has often been considered one of the most important Douglas factors by the MSPB. The result will turn on the specifics of your case and the procedural posture as well. . 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. 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. Additionally, this factor looks at intent. 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. 8.Douglas Factor Analysis. Do not deny the existence of bad facts. 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 . All other penalty determinations should undergo thorough reasoning under the Douglas Factors. The Douglas Factors should be considered in selecting a penalty. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 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. 49 0 obj <> endobj 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. 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. 2278 0 obj <>stream So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? The site is secure. 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. Visit WrightUSA.com to start your policy! 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 . accruing multiple instances of discipline can lead you on the fast track to removal from federal service. 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. Relevant? Why can such behavior not be tolerated? 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream This means you should provide objective facts to support your arguments if you can. h[M+}LX,? The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Factor 7: Consistency of the penalty with any applicable agency table of penalties. You will be notified in writing of the final decision. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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? 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. 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). At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. These factors are the following: 1. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title). Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. Do you need a table of penalties in OPM? If the person signed for receipt of the letter include that information. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. 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. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 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. Deciding officials should do a Douglas analysis in every case, except when Congress . 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Similar offenses can be used to guide penalty selection. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. If you have been disciplined before you will face harsher discipline going forward. Managers and supervisors should properly document the employee misconduct. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. 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. 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. Contact your employee relations advisor to get the information to fill in the blanks. Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. For more information, visit WrightUSA.com. See U.S. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. EAP can be reached by calling 1-800-XXX-XXXX. While each case is different, seeking alternatives may be useful. This one is pretty self-explanatory. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). These 12 factors play a key role in the outcome of federal employee discipline cases. We need to specifically state why there is erosion of supervisory confidence. 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. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. 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. The Douglas Factors: Disciplining employees is a fact of life. 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. 0 Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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. 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. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. 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. 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).