Not All Adverse Actions Require a Douglas Factors Analysis

If you are a federal employee facing an adverse action, you've likely heard the term "Douglas Factors." In fact, some union representatives or well-meaning coworkers may have told you that an agency must conduct a Douglas Factors analysis in every adverse action case, and if they don't, the agency will automatically "lose the case."

That advice is a myth.

The truth is, not all adverse actions require the consideration or application of the Douglas Factors. Knowing when they apply—and when they don't—is critical for both agencies and employees navigating a federal personnel action.

Special Note: Douglas Factors are not required in non-adverse action cases

The entire purpose of the Douglas Factors (established in Douglas v. Veterans Administration) is to help an agency determine if a penalty imposed for employee misconduct is reasonable, fair, and consistent. The factors are only legally required when the action being taken is an MSPB appealable adverse action based on misconduct (disciplinary action) and involves a penalty determination. We understand many agency attorneys arbitrarily require a Douglas Factors anaysis worksheet be completed as part of a Personnel Action Review (PAR) requirement. Nevertheless, they are not required.

Since a non-adverse action does not involve an appealable Chapter 75 adverse action penalty for misconduct, the Douglas Factors are simply irrelevant to the required legal review.

What is a "Non-Adverse Action"?

A "non-adverse action" is a broad term that refers to personnel actions that are not covered by the specific statutory definition of an Adverse Action (5 U.S.C. Chapter 75).

Common examples of non-adverse actions (or actions with lower appeal rights) include:

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• Disciplinary actions of a minor nature:

  • Letters of Reprimand.

  • Suspensions of 14 days or less (these are generally considered disciplinary but are not appealable to the MSPB, thus Douglas Factors are not strictly required, though some agencies may use them as a "best practice").

• Performance-based actions taken under Chapter 43: Removal or reduction in grade for unacceptable performance under 5 U.S.C. Chapter 43 is specifically exempted from the Douglas Factor requirement because the focus is on job elements, not a disciplinary penalty.

• Personnel changes with no loss of pay or grade: Reassignments, routine terminations of temporary appointments, or revocations of a temporary promotion.

Key Takeaway

Type of Action	Focus	Douglas Factors Required?
Adverse Action (Disciplinary)	Penalty for Employee Misconduct	Yes (Required by MSPB case law)
Adverse Action (Non-Disciplinary)	E.g., Medical Inability, Furlough	No (Must meet "Tolerable Limits of Reasonableness" standard)
Non-Adverse Action	E.g., Reprimand, Short Suspension, Ch. 43 Removal	No (Not related to an appealable Chapter 75 penalty)

Understanding the Douglas Factors

The Douglas Factors come from the landmark Merit Systems Protection Board (MSPB) case, Douglas v. Veterans Administration (MSPB 1981). The MSPB listed 12 factors that federal agencies must weigh when determining the appropriate penalty for an employee's misconduct.

An adverse action is defined as one of the following:

• Removal from federal service.

• Suspension for more than 14 calendar days.

• Furlough without pay for up to 30 calendar days.

• A reduction in grade or pay.

The Key Distinction: The requirement to apply the Douglas Factors is tied to a penalty determination. If the action is non-disciplinary in nature—meaning it is not being taken because of employee misconduct—the Douglas Factors are generally not required.

Adverse Actions Where Douglas Factors Are NOT Required

The most common exceptions to the Douglas Factors analysis involve non-disciplinary actions. Agencies often apply the factors "just to be safe," but the law does not strictly require it in these situations:

1. Removal for Medical Inability

When an employee is removed because they are medically unable to perform the duties of their position, this action is non-disciplinary, even if taken under Chapter 75 of Title 5 U.S.C.

• The Correct Standard: The agency is not required to conduct a Douglas Factors analysis. Instead, the MSPB's standard is whether the penalty of removal exceeded the "tolerable limits of reasonableness."

• Case Law: Brown v. Department of Interior (MSPB 2014) confirms that the "tolerable limits of reasonableness" standard applies in lieu of Douglas. In applying this standard, the agency must consider if the employee could perform the duties of another vacant position. However, if the employee fails to cooperate in the agency’s search for an alternative position, the removal may be deemed reasonable (Marshall-Carter v. Department of VA, MSPB 2003).

2. Furloughs (30 Days or Less)

A furlough, typically taken due to a lack of work or funds, is an adverse action. However, since the action is not disciplinary and there is no penalty determination based on misconduct, the Douglas Factors are not required.

3. Removal for Unacceptable Performance Under Chapter 43

An agency has the option to remove an employee for unacceptable performance using either Chapter 43 or Chapter 75of Title 5 U.S.C.

• Chapter 43 (Performance-Based): If an agency removes an employee under 5 U.S.C. Chapter 43, the Douglas Factors are not required (Lisiecki v. MSPB, 85 FMSR 7058 (Fed. Cir. 1985)). The focus is on the performance deficiency, not a disciplinary penalty.

• Chapter 75 (Misconduct-Based): Agencies may, at their discretion, choose to remove an employee for unacceptable performance under Chapter 75 instead (Lovshin v. Department of Navy, 767 F.2d 826 (Fed. Cir. 1985)). In this specific instance, the agency is then bound by the Chapter 75 procedural requirements and must prove the penalty was reasonable under the facts and circumstances. Therefore, the Douglas Factors would be required.

The Bottom Line for Federal Employees

The notion that an agency must perform a full Douglas Factors analysis in every adverse action case is inaccurate.

• If the adverse action is disciplinary (based on misconduct), the Douglas Factors are mandatory to assess the penalty's reasonableness.

• If the adverse action is non-disciplinary (e.g., medical inability, Chapter 43 performance, or a budgetary furlough), the Douglas Factors are unnecessary and a different legal standard applies.

Understanding this distinction is key to a successful appeal strategy. Don't rely on myths—rely on the specific facts and legal citations relevant to your case.

Need to know which standard applies to your adverse action? The variables in facts and circumstances can alter this analysis significantly. Contact us for a free consultation.