The Performance Evaluations' Stake in Certain Misconduct Allegations
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
A passport specialist at the Department of State (DOS) was terminated based on four charges, and eighteen specifications, of misconduct. Eleven of those specifications came in a charge of failure to follow instructions. He argued that his fully successful performance evaluation should be considered as evidence that he consistently followed instructions. The Merit Systems Protection Board (MSPB) rejected that argument. But on October 29, 2021, the United States Court of Appeals for the Federal Circuit found that the MSPB erred.
At MSPB, the Administrative Judge (AJ) held that there was “no inconsistency between the evaluation and the charge,” accepting the agency’s argument that “performance involves an employee who ‘can’t do’ while misconduct involves an employee who ‘won’t do.’” While the Federal Circuit did not dispute that distinction, it simplified the calculus. The appeals court noted that for passport specialists at DOS, the “appraisal form itself demonstrates that following instructions can fall within” one of the performance requirements evaluated in a final appraisal, making the evaluation relevant given that the employee was charged with failure to follow instructions.
At oral argument, the government “admitted that the evaluation covers following instructions.” Thus, the appeals court held that “the evaluation was clearly relevant, and the Board was obligated to consider it.” But the appeals court made clear that “the existence of a fully successful performance evaluation” does not bar discipline for matters covered by the evaluation. Instead, the court stated, MSPB judges must consider performance evaluations as relevant evidence when an employee is disciplined for a matter covered by the evaluation.
Despite the MSPB’s error, the appeals court concluded that the failure to consider the evaluation was not “reversible error,” and was instead “harmless error.” The appeals court noted that the employee did not dispute at the agency level or Board level that “any of the events underlying the specifications occurred,” thus nullifying the conflict between the fully successful evaluation (which did not claim he failed to follow instructions) and the charged misconduct (which claimed he failed to follow instructions). In addition, the appeals court held that five of the eleven specifications of failure to follow instructions took place “after the evaluation period, and thus could not be rebutted by the evaluation.”
The appeals court held that the employee’s performance evaluation was also “relevant to the seriousness of the offenses insofar as the offenses occurred during the evaluation period.” The nature and seriousness of an offense is one of the twelve Douglas factors that agencies and adjudicators must consider when determining whether the chosen penalty (termination in this case) was reasonable.
But although the MSPB AJ did not consider the evaluation in his analysis of the penalty, the deciding official did. According to the appeals court, the deciding official “expressly weighed [the employee’s] evaluation and past work record among other mitigating factors.” Again, the appeals court held that the MSPB AJ’s failure to consider the evaluation was harmless error, as it was “not likely to alter the Board’s conclusion that the penalty was reasonable,” given that “the failure to follow instructions is undoubtedly a serious matter when it occurs repeatedly over a prolonged period.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the MSPB Administrative Judge’s decision to sustain the employee’s removal.
Read the full case: Valles v. State.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.