MSPB: Issues of performance and misconduct may overlap #precedentialdecision

 

This is a Precedential Court Decision for readers tracking precedence and types of cases.
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1686
MSPB Docket Number: DE-0752-19-0297-I-2
Issuance Date: October 29, 2021
Adverse Actions; Performance and Misconduct; Harmful Error; Penalty/Frequently Repeated Offenses

The petitioner was a Passport Specialist for the agency, who in 2016 served a 3-day suspension for making inappropriate comments at work, and in 2018 served a 5-day suspension for failure to follow instructions and failure to protect personally identifiable information. Nevertheless, the petitioner received a fully successful performance rating for calendar year 2018.

On May 9, 2019, the agency removed the petitioner based on four charges:

(1) failure to follow instructions (eleven specifications), (2) failure to protect personally identifiable information (one specification), (3) failure to follow policy (five specifications), and (4) improper personal conduct (one specification). Some of this conduct occurred during the 2018 rating period.

The petitioner filed a Board appeal, and the administrative judge issued an initial decision affirming his removal. The administrative judge credited the agency’s distinction between issues of performance and misconduct, the former involving employees who “can’t do” and the latter involving employees who “won’t do.” Finding that the charges “presented an issue of misconduct more than performance,” the administrative judge declined to consider the 2018 performance evaluation as a rebuttal to the charges. He found that the agency proved its charges and established nexus and that the removal penalty was reasonable under the circumstances. The initial decision became final, and the petitioner sought judicial review.

Holding: Issues of performance and misconduct may overlap. The existence of a fully successful performance evaluation does not necessarily bar discipline for matters covered by that evaluation, but it still must be considered in determining whether the employee committed the offenses charged and the reasonableness of the penalty imposed.

1. The court explained that performance and conduct issues “may overlap.” In this case, the petitioner’s performance plan required that he follow instructions, and some of the specifications under the failure to follow instructions charge occurred during the period covered by the 2018 performance evaluation. Therefore, the administrative judge should have considered that evaluation in assessing that charge.

2. Nevertheless, the administrative judge’s failure to consider the 2018 performance evaluation did not constitute reversable error because the petitioner failed to show that it likely affected the outcome of the Board’s decision. The petitioner did not dispute that any of the events underlying the charges occurred, and five of the eleven specifications of failure to follow instructions occurred outside the 2018 performance year.

3. Even assuming that the administrative judge erred in failing to consider the 2018 performance evaluation in assessing the penalty, the petitioner did not show harmful error. First, the deciding official considered the evaluation in reaching his penalty determination, in the context of his thorough Douglas factor analysis. Second, even if the evaluation suggested that the 2018 specifications of failure to follow instructions were not serious in and of themselves, their seriousness was magnified in light of the petitioner’s prior discipline for similar infractions and his continued failure to follow instructions after the 2018 appraisal period ended.

Read in full here.

 

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