Federal Manager's Daily Report

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The MSPB has refined one of the dozen so-called “Douglas factors” it weighs when considering whether to uphold, reverse or mitigate disciplinary actions against federal employees for alleged misconduct — the factor being the consistency of penalties imposed upon other employees for the same or similar offenses.

In a series of cases following a 2009 court ruling, the MSPB had held that broad similarity in conduct between the appellant and the comparator was sufficient to shift the burden to the agency to explain a difference in treatment. It also had ruled that the analysis can extend beyond the same or similar offenses to consideration of whether the comparators’ conduct was as serious as or more serious than that of the appellants.


However, in 22 MSPB 15, the board said those rulings went beyond what the court precedent required, saying that “In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently . . . The Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately,” it said.

Further, while a comparator need not always have to be in the same work unit or under the same supervisor, that is “an important factor in determining whether it is appropriate to compare the penalties they are given. In most cases, employees from another work unit or supervisory chain will not be proper comparators.”

The decision added: “The consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty. Therefore, while the fact that one employee receives a more severe penalty than that imposed on a comparator who has committed the same or similar misconduct should be considered in favor of mitigating the penalty in a given case, mitigation is by no means required in all such cases.”

“There often will be a range of penalties that would fall within the tolerable limits of reasonableness in a given case. That an agency chooses to impose a penalty at the more lenient end of that range in one case should not mean that it cannot impose a penalty at the more severe end of that range in another case,” it said.

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2022 Federal Employees Handbook