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What factors does the MSPB consider in discipline reviews?

Discipline is not a one-size-fits-all kind of thing. This is as true within the construct of the federal employment system as it is in any other. It's for this reason that no two cases brought before the Merit Systems Protection Board in appealing disciplinary action are ever alike.

Consistency in discipline is something most would agree is a goal to strive for. However, there is really no way to ensure uniform action across an organization the size of the U.S. government. Every agency experiences misconduct by some employees, but not every manager deals with improper behavior the same way. Being late for work might trigger no response from one boss. Another might crack a harsh whip.

This presents a significant challenge to MSPB members during appeals. One way this semi-judicial body has responded to that challenge is with the creation of The Douglas Factors.

This is a set of 12 standards against which the MSPB tries to gauge the legitimacy of disciplinary action against workers. They include:

  • The seriousness of the offense, including whether it was intentional or not
  • The nature of the employee's job – how prominent it is
  • The worker's record of past discipline
  • The worker's general employment history
  • The effect the misconduct might have on fulfillment of the worker's duties
  • Consistency of penalty compared to others who committed a similar offense
  • The potential effect the wrongdoing might have on the agency's reputation
  • Whether there's potential for rehabilitation
  • Whether factors such as job stress, mental issues, or harassment from others contributed to the commission of the act
  • Determining if some alternative might be sufficient to deter such misconduct in the agency going forward

This list is not comprehensive, but it begins to provide a map of the different elements a worker might want to examine when considering an appeal of disciplinary action. Working with an experienced attorney is another element that deserves exploration.

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