Douglas Factors, MSPB ruling in 1981, eeo 21

The US

Merit Systems Protection Board

ruled in 1981 on the case captioned, "Curtis Douglas v.

Veterans Administration," and stated in its ruling:

"Court decisions and OPM [Office of Personnel Management] and Civil Service Commission issuances have

recognized a number of factors that are relevant for consideration in determining the appropriateness of a penalty.

Without purporting to be exhaustive, those generally recognized as relevant include the following:

(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,

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

supervisor's 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.67/

Not all of these factors will be pertinent in every case, and frequently in the individual case some of the pertinent

factors will weigh in the appellant's favor while others may not or may even constitute aggravating circumstances.

Selection of an appropriate penalty must thus involve a responsible balancing of the relevant factors in the

individual

case. The Board's role in this process is not to insist that the balance be struck precisely where the

Board would

choose to strike it if the Board were in the agency's shoes in the first instance; such an approach

would fail to accord

proper deference to the agency's primary discretion in managing its workforce. Rather, the

Board's review of an

agency-imposed penalty is essentially to assure that the agency did conscientiously consider

the relevant factors and

did strike a responsible balance within tolerable limits of reasonableness. Only if the

Board finds that the agency

failed to weigh the relevant factors, or that the agency's judgment clearly exceeded the

limits of reasonableness, is it

appropriate for the Board then to specify how the agency's decision should be

corrected to bring the penalty within

the

parameters of reasonableness."

Cited from the full text of the decision posted in:

http://www.mspb.gov/decisions/1981/douglas_at501166800.htm

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