The general requirement that employees who commit similar misconduct must be disciplined in a similar way does not necessarily mean that disciplinary actions must be identical, MSPB has said. However, for the disciplinary action to pass legal muster as being reasonable, an agency must be able to show that penalties differed because there were differences in the situations, it added.

In the most recent issue of its Issues of Merit publication, MSPB noted that in arguing there that a penalty should be overturned as unreasonable in light of past practices, “an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar to those of another employee who received a lesser penalty.

“This goes beyond the question of what misconduct occurred. Proof that the employee who received the lesser penalty was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline can help an appellant to make an initial showing that the charges and the circumstances surrounding the charged behavior are substantially similar,” it said.

“However, these are factors to be considered, not hard-and-fast mathematical calculations. Board case law demonstrates how important it is for the agency to be prepared to articulate the reasons why the case at issue is different from cases that appear similar. Every case will be considered on its own merits.”

It cited as an example a case in which the board found upheld a penalty harsher than that imposed on another employee in a similar situation because the employees worked in separate chain of commands, had different responsibilities, there was a two-year time lapse since the first case, and the latter employee had committed certain additional offenses not committed by the former.