We often receive calls from prospective clients who believe their due process was violated because the agency failed to conduct a Douglas Factors analysis in connection with a proposed action. Some unions have even advised federal employees that an agency that fails to conduct a “Douglas Factors” analysis in all cases will “lose the case”. Neither instance is true. Not all adverse actions require the consideration or application of the Douglas Factors. Arguably, many agencies apply Douglas Factors ”just to be safe” when they should not
Note: this article is not intended to provide a comprehensive discussion of the “Douglas Factors” or its application. It is only intended to address the fact that there are instances of adverse actions that would not require application of the Douglas Factors.
In Douglas v. Veterans Administration (MSPB 1981), the Merit Systems Protection Board listed 12 factors agencies must balance when deciding on a penalty in adverse actions (an adverse action is defined as removal from federal service, suspension for more than 14 calendar days, furlough without pay for up to 30 calendar days or a reduction in grade or pay). The key point is that a penalty determination by the agency must be performed for the Douglas Factor requirement to exist.
Accordingly, not all adverse action cases require application of the Douglas Factors. For example, but not all inclusive,
Removal for Medical Inability – While these adverse actions can be taken under Chapter 75, they are considered non-disciplinary and thus not subject to the Douglas Factors requirement. Brown v. Department of Interior (MSPB 2014). In Brown, the MSPB stated that the correct standard to be applied in lieu of Douglas factors is whether the penalty of removal exceeded “the tolerable limits of reasonableness.” In applying this standard, in this instance, the agency must consider whether the employee was capable of performing the duties of another vacant position. However, if the employee fails to cooperate in the agency’s attempt to find an alternative position, the penalty of removal would be reasonable. Marshall-Carter v. Department of VA (MSPB 2003). “Tolerable limits of reasonableness” means the proper consideration of all the available and relevant factors when exercising management’s discretion in arriving at a decision.
Furloughs – As there is no penalty determination in effecting furloughs and the action is not disciplinary in nature, again, there is no requirement for agency application of the Douglas Factors.
Removal for Unacceptable Performance – If an agency removes an employee for unacceptable performance under 5 USC Chapter 43, the Douglas factors are not required. Lisiecki v. MSPB, 85 FMSR 7058 (Fed. Cir. 1985). An agency, at its sole discretion, may otherwise remove an employee for unacceptable performance under Chapter 75 instead of Chapter 43. Lovshin v. Department of Navy, 85 FMSR 7038 , 767 F.2d 826 (Fed. Cir. 1985). However, if the agency chooses the Chapter 75 method, it is bound by substantive and procedural requirements (due process) and must prove that the penalty was reasonable under the facts and circumstances of the case. Therefore, Douglas factors would be required in this instance.
In closing, we sought to provide very basic information concerning the question of whether Douglas Factors are required in every instance of an adverse action. It is not. However, there are many variables in both facts and circumstances that could alter our analysis. Therefore, we recommend you contact a consultant. You may also read our other article on Douglas Factors.
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