table of penalties douglas factors

Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. stream When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. This Douglas factor comes into play when the Agency picks and chooses different penalties for similar-level federal employees. This factor lends itself most to employees arguing for leniency in their case. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). 51, 8 (2001). For example, an allegation of dishonesty would be treated . If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . 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. 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. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. You should not list a factor unless it is relevant. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. In theory, discipline should be both corrective and progressive. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. 2 0 obj That translates into harsher penalties for repeat offenders. 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. 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. Merit Systems Protection Board, Why Federal Employees Have the Right to a Hearing, Implementing or Challenging Initial Decisions, Agency Officials Substantive and Procedural Errors and How to Fix Them. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# 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. Relevant? This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. 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 . Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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). PDF Chapter 4. Hud Table of Offenses and Penalties the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. 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. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. 49 0 obj <> endobj %PDF-1.5 Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). On (DATE), you were scheduled to report to work at (TIME). This is because it puts you on notice of the penalties which is factor #9, below. 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. \|Y,y#}|\G|u|.;HWO)58rHY.+ry9$~]BJNwn;`L\RU=TDrwumX=XDjuh:bIvMQg:u?*:qKK~#q!?). 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). The .gov means its official. In short: if youre facing removal leveraging the 12 Douglas Factors the right way could save your job. Reston, VA 20190. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? MSPB decision. 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. Why can such behavior not be tolerated? 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 502, 508 (1994) (holding that because 31 U.S.C. 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. Similar offenses can be used to guide penalty selection. Don't force misconduct into a listed offense unless it accurately fits. 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. We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agencys table of penalties. generadores de diesel precios Let me give you an example. Starr Wright USA is the nations leading provider of FEPLI. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. Factor: Consistency with table of penalties 2. Cir. How does action taken promote the efficiency of the service? 280 (1981). Conclusions and vague statements do not hold much weight with third parties. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). 3 0 obj A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. endstream endobj startxref Spending the money upfront on representation at your oral-reply,could save you from spending thousands of dollars fighting your case at the Merit Systems Protection Board. This Douglas factor is important and we use this argument in our representation of federal employees. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). 8.Douglas Factor Analysis. Suite 305 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 every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. There are certain standards of behavior and conduct expected of employees by our external and internal customers. However, the principle of "like penalties for like offenses" does not require perfect consistency. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 1 0 obj If you list a factor you must explain why it is relevant. 4 0 obj What every federal employee facing discipline should be familiar with: The Douglas Factors. 1 What every federal employee facing discipline should be familiar with: The Douglas Factors. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Berry & Berry PLLC. @b o $&F Sq70 # 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. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Visit WrightUSA.com to start your policy! 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. <> That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. Douglas Factor Mitigation for Federal Employees Your job as an employee is to support your position as best as you possibly can. 5 Douglas v. Veterans Administration, 5 M.S.P.R. If you want you can download and read the fullDouglas v. V.A. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. This one is pretty self-explanatory. These terms are used commonly in Douglas Factors application. Sometimes management may misapply factors, or misconstrue them. The Douglas factors are also referred to as mitigating factors. 3 Douglas v. Veterans Administration, 5 M.S.P.R. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. 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. Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Specific evidence/testimony as to why an employee can no longer be trusted is critical. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. But they may refuse to. On (DATE), you were scheduled to report to work at (TIME). Sample 2: You have the right to review the material relied on to support this proposed removal. Factor 3: The employees past disciplinary record. 6 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Additionally, this factor looks at intent. 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. PDF The Douglas Factors - National Federation of Federal Employees 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. 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. The employee's job level and type of employment . The notoriety of the offense or its impact upon the reputation of the Agency; 9 . The more notorious the offense you commit the more severe the discipline you will face. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. The Douglas Factors should be considered in selecting a penalty. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army We need to specifically state why there is erosion of supervisory confidence.