table of penalties douglas factors table of penalties douglas factors

Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. By William N. Rudman . Factor 7: Consistency of the penalty with any applicable agency table of penalties. This means you should provide objective facts to support your arguments if you can. @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ The final Douglas Factor asks both manager and employee to consider alternative penalties. Cir. We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. 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 . In addition, actions . This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Lets say you missed a deadline for an important assignment and management has proposed removal. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. 1999). 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. 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. The employee's job level and type of employment . The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. 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. The right to answer orally does not include the right to a formal hearing with examination of witnesses. 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. Relevant? the case of Douglas vs. Veterans Administration, 5 M.S.P.R. Douglas Factor Analysis. Agency's table of penalties recognizes this severity in establishing ranges of penalties for The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. We are currently not taking any new cases at this time. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Sample: Specification #1. * Douglas v. Veterans Administration, 5 M.S.P.R. This factor lends itself most to employees arguing for leniency in their case. 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 . 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 . 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. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Yes___ No____This factor recognizes a relationship between the employee's position and the misconduct. 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. MSPB decision. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . . 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. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. PDF Chapter 4. Hud Table of Offenses and Penalties 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. In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. This factor basically asks: Did you know, or should you have known, that what you did was wrong and that you would be punished for engaging in that kind ofconduct? the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. Postal Service, 634 F.3d 1274, 1279 (Fed. But they may refuse to. 280, 302 (1981). Some Federal Agencies require the proposing official to conduct a Douglas analysis and include the proposal, others do not. Press Briefing by Press Secretary Karine Jean-Pierre Factor: Nature and seriousness 9. 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 PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Determine an experienced a table of penalties douglas factors and ends with childishness rather than intentional or reasons, agencies should not have successfully. 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. 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. For instance, did the employee have access to the table of penalties? 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. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The Douglas Factors should be considered in selecting a penalty. 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. 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. endobj For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. They know the stress of a career, they know how life can be difficult. It is critical for the agency to articulate a relationship between the misconduct and the employee's position and responsibilities. These terms are used commonly in Douglas Factors application. 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. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. Greater or lesser penalties than suggested may be imposed as circumstances warrant, and based on a consideration of mitigating and aggravating factors. Berry & Berry PLLC. An overlooked factabout the cost of hiring an attorney is that they can actually save you money. Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. It is more often used to attempt to aggravate a disciplinary penalty. 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 that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. 11.Representation Paragraph(s): Sample: You have the right to be represented by an attorney or any other individual of your choice provided such representation does not constitute a conflict or an apparent conflict of interest with your representatives duties. 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. In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. ^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. 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. Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Plaza America Explanation, if relevant: (7) Consistency of the penalty with any applicable agency table of penalties. 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. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Can someone help me present the Douglas Factors to management? In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation .