The agency has the burden of proof in any Merit Systems Protection Board or arbitration case alleging misconduct. Not only does the agency have to prove by a preponderance of the evidence that the misconduct took place, but it must also prove that it considered all of the relevant factors and its choice of the penalty was reasonable.

In the leading case of Douglas v. Veterans Administration, 5 MSPR 280 (1981), the Board set forth the applicable factors which it will consider: the seriousness of the offense; the employee’s position, including whether it is fiduciary or supervisory; the employee’s past disciplinary record; the effect of the offense on the employee’s ability to perform satisfactorily or upon management’s confidence in the employee’s ability to perform; the employee’s past work record, length of service, job performance, and job dependability; the consistency of the penalty with those imposed on similarly situated employees; the consistency of the penalty with the agency’s table of penalties; the notoriety of the offense; the clarity with which the employee was on notice of rules allegedly violated; the employee’s potential for rehabilitation; mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice on the part of the supervisor; and the adequacy of alternative sanctions to deter future misconduct.

Not all Douglas factors will apply in each case, and the Board or the arbitrator will give due deference to the agency’s reasonable exercise of its discretion, provided that the management judgment has been properly exercised and that the penalty selected does not exceed the maximum limits of reasonableness. However, where the deciding official fails to properly consider the relevant factors, the Board or the arbitrator need not defer to the agency’s penalty determination. In a recent important decision in Wentz v. U.S. Postal Service, MSPB No. PH-0752-01-0009-I-1 (3/13/02), the Board mitigated the removal of letter carrier to a five-day suspension because the postmaster failed to consider the appropriate factors.

The employee had been removed due to unintentionally leaving his vehicle’s motor running with the emergency brake not set which caused a minor accident. However, the deciding official failed to consider the employees length of satisfactory service, his being under the influence of prescription medication to treat an infection, the lesser penalties meted out to others in a comparable situation, and improperly considered prior accidents where the employee was not charged. The Board found that the employee had a good potential for rehabilitation as he reported the accident and took responsibility for his actions. “In sum, while the misconduct at issue is serious and the appellant has been trained on the safe operation of a motor vehicle, there are numerous mitigating factors, many of which the deciding official failed to properly consider.”

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **