The determination of which penalty to impose in a particular situation requires the application of responsible judgment. Disciplinary action taken is based on the conclusion that there is sufficient evidence available to support the reason(s) for action and that the disciplinary action is warranted and reasonable in terms of the circumstances which prompted it.

In determining the appropriate remedy, management must observe the principle of “like penalties for like offenses in like circumstances.” This means that penalties will be applied as consistently as possible. Management must establish that the penalty selected does not clearly exceed the limits of reasonableness. A well known Merit Systems Protection Board (MSPB) case (Douglas v. Veterans Administration (5 M.S.P.R. 280) 1981) addressed this issue in detail. A number of factors which management must weigh in deciding an appropriate course of action are discussed in this case. These factors are often referred to as the Douglas factors. Some factors may not be applicable to a given case; relevant factors must be considered. Bear in mind, however, that certain offenses (e. g., drug trafficking) warrant mandatory penalties.

Any decision notice concerning an adverse action which may be reviewed by the MSPB should cite the fact that the relevant Douglas factors were weighed in reaching the decision.

Douglas v. Veterans Administration (5 M.S.P.R. 280) 1981

The Board will review an agency?imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness.  Among the factors the Board considers 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;

(2) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

(3) the employee’s past disciplinary record;

(4) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

(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;

(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;

(7) consistency of the penalty with any applicable agency table of penalties;

(8) the notoriety of the offense or its impact upon the reputation of the agency;

(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;

(10) potential for the employee’s rehabilitation;

(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; and

(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.