This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees However, if you properly argue this factor it can go a long way towards helping your case. Agency's table of penalties recognizes this severity in establishing ranges of penalties for 5 Douglas v. Veterans Administration, 5 M.S.P.R. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. Cir. 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. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 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. On (DATE), you were scheduled to report to work at (TIME). 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. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. Specification #2. The final Douglas Factor asks both manager and employee to consider alternative penalties. rDA(dCpY0!G8#rDA(9un\##HH_|?;y.?yA>1i|e,Q}ptWS8?/Gz That translates into harsher penalties for repeat offenders. 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. To some extent, this is a subjective question. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. 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. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. 280 (at 305-6), 1981 MSPB Lexis 886 (at *38-9). 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? Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. removal). U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Check with your labor relations advisor. 1999). Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. In contrast, an employee with multiple priorcases of discipline is likely to face a much greater amount of discipline owing to that factor alone. PDF DOI Department Manual Table of Offenses and Penalties Douglas Factors matters vary from case to case and federal employees should consult with an attorney. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. If the person signed for receipt of the letter include that information. %PDF-1.5 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. If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. A supervisor cannot just say it; he/she has to prove it. 280 (1981). 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 (1981) These factors are used to explain why the penalty was chosen. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. What is the table of penalties? - idswater.com Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. At Berry & Berry, PLLC, our attorneys represent federal employees in various types of federal agency disciplinary and adverse actions. Factor 10: Potential for the employees rehabilitation. If they are a manager or in a position of great trust any transgression is likely to be viewed more harshly. ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. % <> Did the employee have access to a handbook that detailed proper procedure and policy? The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. 4 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . The Douglas Factors . Table Of Penalties Douglas Factors 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. Douglas Factors for Federal Employees - berrylegal 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. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. 2 0 obj 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. 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. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. !%7K81E8zi. 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. Press Briefing by Press Secretary Karine Jean-Pierre When looking for an attorney make sure they have experience handling federal-sector employment cases. 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. Cir. 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. 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? Determining the Penalty - United States Merit Systems Protection Board ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . An employee with a significant disciplinary record most likely would have poor potential for rehabilitation. But do not highlight them either. The Douglas Factors include: The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. hbbd``b`:$ Hd V$D? The nature and seriousness of the offense, and its relationship to the employee's . 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. 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 If the action is less than a removal, add: Further misconduct on your part may result in disciplinary action up to and including removal from your position and from Federal service. The first factor looks at the severity of the misconduct and how itrelates to the position the employee has. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. See Douglas v. Veterans Administration, 5 M.S.P.R. If not, include delivery confirmation by the postal or delivery service. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Note. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. If they refuse, your only recourse may be arguing your adverse action before the Merit Systems Protection Board (MSPB). accruing multiple instances of discipline can lead you on the fast track to removal from federal service. Relevant? <>>> Cir. <> By William N. Rudman . Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. These are known as Douglas factors. These terms are used commonly in Douglas Factors application. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). hmo0 U6S!)Mh~wP`B|)ZAp!= xCKno:Phj-bXJbAw,,M]KO2]fka8c iGusuOIt XG.2o*XYa&5'0>lw,Utr;(}s]6rqGp_g5>G7eucOL_>& 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. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. In the case of Douglas vs. Veterans Administration, 5 MSPR 280 (1981), the . Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. 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. past performance). For more information, visit WrightUSA.com. This means you should provide objective facts to support your arguments if you can. 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 . This has often been considered one of the most important Douglas factors by the MSPB. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Do you need a table of penalties in OPM? Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. Heres what anyone who works for the federal government needs to know about the Douglas Factors. 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; Sample: Specification #1. 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 . In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. 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:#/ Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Let me give you an example. 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. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Discipline can range from letters of reprimand to short suspensions. Your absence was not approved by your supervisor. 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. 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 . Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant?
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