table of penalties douglas factors

5 Douglas v. Veterans Administration, 5 M.S.P.R. For example, an allegation of dishonesty would be treated . Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. 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 . 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. Suite 305 In addition, actions . See Douglas v. Veterans Administration, 5 M.S.P.R. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. But do not highlight them either. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. 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. Specification #2. 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. If this is impractical to do, use Sample 2. %PDF-1.6 % These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. a. generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. 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 . The final Douglas Factor asks both manager and employee to consider alternative penalties. 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 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; That is why its important to use these factors to analyze the facts of each individualcasewhere the rubber hits the road. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. Has an employee been on the job for a long time? 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. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. The notoriety of the offense or its impact upon the reputation of the Agency; 9 . Misconduct is also considered more severe if it is done maliciously or for personal gain. The Table provides for more serious penalties for . 280 (1981). Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. Ultimately, managers are people too. 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. 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. Note. 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 . 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. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. 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. endstream endobj startxref 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. If the person signed for receipt of the letter include that information. We are currently not taking any new cases at this time. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. On (DATE), you were scheduled to report to work at (TIME). the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. These are known as Douglas factors. <>>> Ultimately, the more credible evidence you can provide to support your position the better. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. Do not deny the existence of bad facts. COPYRIGHT 2023. The Douglas factors are also referred to as mitigating factors. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). 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. 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. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. The employee's job level and type of employment . For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. This factor lends itself most to employees arguing for leniency in their case. WA For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. You should not list a factor unless it is relevant. The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. The Douglas Factors . Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. Berry & Berry PLLC. They know the stress of a career, they know how life can be difficult. Plaza America You neither came to work nor did you call in your absence. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. You will be notified in writing of the final decision. Yes___ No____This factor is one of the more technically difficult to apply. Relevant? The idea is that discipline is meantto be corrective and progressive. 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. endobj Factor: Nature and seriousness 9. <> Consistency of the penalty with any applicable agency table of penalties; 8. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. 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. 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. 11700 Plaza America Drive Before sharing sensitive information, make sure youre on a federal government site. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Managers must apply penalties that are similar to those imposed in like cases. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that the agency bears the burden of proving its charge by a preponderance of the evidence and that, [u]nder the Boards settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it); Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. accruing multiple instances of discipline can lead you on the fast track to removal from federal service. How do you handle these aggravating factors? A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Factor: Notoriety and impact 3. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. If you follow this guide, and focus on the factors that support your position, and provide credible evidence in support of your points, you will have gone a long way towards lowering the amountdiscipline you will receive. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 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. Additionally, the Board cannot review the reasonableness of a penalty that is set by law. It is important to rebut these issues in a Douglas factor defense. removal). It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. How the factors will be applied in your disciplinary case depends on the specifics of your case. 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). Federal agencies may take disciplinary action against employees who engage in misconduct. 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 . Yet surprisingly, most non-managerial federal employees have no knowledge of these important factors until they themselves are facing discipline. endobj 280 (1981) These factors are used to explain why the penalty was chosen. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. %%EOF This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Your written reply and any evidence should be sent to the Deciding Official, (Deciding Official's Name), (Deciding Official's Title).