table of penalties douglas factors

Factor 7: Consistency of the penalty with any applicable agency table of penalties. The result will turn on the specifics of your case and the procedural posture as well. 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. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). Regardless, try to avoid getting into an argument with management over factors. 0 See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 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. If you list a factor you must explain why it is relevant. NOTE: Penalty depends on such factors as provocation, extent of any injuries, and whether actions were defensive or offensive in nature. Douglas Factors matters vary from case to case and federal employees should consult with an attorney. The Douglas Factors: Disciplining employees is a fact of life. 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. Private sector cases are drastically different. 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. 2 0 obj Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. On (DATE), you were scheduled to report to work at (TIME). PDF Douglas Factors In Depth - Letter Carrier Connection 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 consistency of the penalty with any applicable agency table of penalties; 8. Consistency of the penalty with any table of penalties an agency may have . The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. hbbd``b`:$ Hd V$D? After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. 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. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. 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. Fighting Title 31 Currency Seizures issued by CBP, New executive order on anti-dumping and countervailing duties, Roberts v. DHS A pro se challenge to the Global Entry Program, Q & A with a Merit Systems Protection Board Representative, Fighting a Failure to Declare Penalty (19 USC 1497) issued by CBP. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. 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. 280 (1981) These factors are used to explain why the penalty was chosen. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Did management send out a memo clarifying rules? 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. 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. 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. 280, 290 (1981). Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. This has often been considered one of the most important Douglas factors by the MSPB. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties Ultimately, the more credible evidence you can provide to support your position the better. 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. 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. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Agency's table of penalties recognizes this severity in establishing ranges of penalties for Management has likely even required you to review the table and sign a form asserting your knowledge of it. If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. A Table of Penalties is a list of . 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. Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 280, 302 (1981). 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. . Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Cir. 280 (1981) These factors are used to explain why the penalty was chosen. While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Managers must take an employees propensity for rehabilitation into account. The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency's penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. 12.Provision of Information Relied Upon Paragraph: Generally, the material (evidence such as witness statements, policies, regulations and the like) should be referenced and attached to the proposal. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz 2278 0 obj <>stream The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter But do not highlight them either. This factor looks to the status of the employee. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . What is the table of penalties? - idswater.com Cir. Factor 1: 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. This Douglas factor is not one of the more commonly cited Douglas factors. 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. Starr Wright USA is the nations leading provider of FEPLI. 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. The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. Ultimately, managers are people too. That translates into harsher penalties for repeat offenders. 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 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. For more information, visit WrightUSA.com. You will be notified in writing of the final decision. stream 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. Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors). 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. Relevant? 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. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Sometimes management may misapply factors, or misconstrue them. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. You should not list a factor unless it is relevant. 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. 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. Cir. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. <> a. Berry & Berry PLLC. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Internal Control Evaluation, page 21 . Federal agencies may attempt to base a proposed or final penalty based on an agencys table of penalties. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. The Douglas Factors should be considered in selecting a penalty. 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 A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. This is because it puts you on notice of the penalties which is factor #9, below. Cir. The idea is that discipline is meantto be corrective and progressive. Plaza America PDF Committee on Oversight and Government Reform U.S. House of 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. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. 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. The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link 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. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). To some extent, this is a subjective question. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. past performance). Table Of Penalties Douglas Factors Also any awards or accolades the employee has would be mitigating in nature. Sample 1: I have attached the material relied on to support this proposed removal. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. posted June 9, 2003. As a general rule, the more negative publicity caused by an offense, the harsher the discipline. If you are looking for a representative, note that we are not taking on any cases at this time. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. On the surface, many incidents of misconduct may seem to be similar. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. 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. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. 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. Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. Before sharing sensitive information, make sure youre on a federal government site.

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