When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. 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. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. Plaza America So, if you do not conform your conductafter being disciplined the first time the penalty will be increased in hope that the misbehavior will cease as you respond to harsher discipline. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. What is effect of the misconduct charged? Additionally, the Board cannot review the reasonableness of a penalty that is set by law. Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 280, 305-06 (1981). This factor looks to the status of the employee. This article covers the Douglas Factors. Consistency of the penalty with any table of penalties an agency may have . Relevant? Did management send out a memo clarifying rules? Misconduct and Discipline | U.S. Department of the Interior Postal Service, 634 F.3d 1274, 1279 (Fed. 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 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. PDF Table 1-1: Table of Penalties for Various Offenses - United States Army Table Of Penalties Douglas Factors It is important to rebut these issues in a Douglas factor defense. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. Document, document, document provide credible evidence, let it speak for itself, Handling bad facts, applying them to Douglas Factors. See Douglas v. Veterans Administration, 5 M.S.P.R. 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. An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Sample 2: You have the right to review the material relied on to support this proposed removal. Offenses related to intoxicants. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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:#/ Sample 1: I have attached the material relied on to support this proposed removal. We need to specifically state why there is erosion of supervisory confidence. 4 0 obj 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). Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized. * Douglas v. Veterans Administration, 5 M.S.P.R. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. 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 tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty. 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 . Federal government websites often end in .gov or .mil. Cir. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. Remain calm, deferential and respectful at all times. 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. 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. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. Do they have a positive track record? 1 0 obj DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Do not deny the existence of bad facts. 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. past performance). In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . 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 . The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. They know the stress of a career, they know how life can be difficult. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. 2012) (internal citations and punctuation omitted). 1999). The first time an employee is Such cases call into question an employees ability to perform their specific job duties with integrity. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Ultimately, the more credible evidence you can provide to support your position the better. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. Relevant? Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. PDF Civilian Personnel Disciplinary and Adverse Actions - United States Army For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? But you know one of your colleagues has recently missed a deadline of similar importance and was only issued a letter of reprimand. 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. Douglas Factors for Federal Employees - berrylegal The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. An official website of the United States government. If youre facing a 30 day suspension and an attorney helps you get it lowered to 15 days, they have essentially just saved you two weeks of your pay. Relevant? Ultimately, managers are people too. Consistency of the penalty with any applicable agency table of penalties; 8. If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. hbbd``b`:$ Hd V$D? PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE 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. However, a thorough investigation and evaluation may lead to a determination that the misconduct was not substantially similar. If you are low level employee with no supervisory functions this factor should have some mitigating value. The Douglas Factors . Opinions expressed in this article are for informational purposes only and do not constitute legal advice. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. 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. 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. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). PDF DOI Department Manual Table of Offenses and Penalties Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. 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. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. What is the table of penalties? - idswater.com When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. Be clear, terse, and apologetic. Discipline can range from letters of reprimand to short suspensions. These terms are used commonly in Douglas Factors application. Relevant? Explanation, if relevant: (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.Relevant? Agency's table of penalties recognizes this severity in establishing ranges of penalties for See U.S. A deciding official must consider specific factors in determining the reasonableness of the penalty. 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. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The use of a federal employees past disciplinary record is one of the more commonly cited Douglas factors. 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. Lets say you missed a deadline for an important assignment and management has proposed removal. For instance, did the employee have access to the table of penalties? Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Private sector cases are drastically different. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful .
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