Performance or conduct? Standards differ for adverse action


A perplexing challenge for a federal manager is figuring out whether a problem employee should be handled through the performance or misconduct adverse action systems. Each system has different standards and requirements. To some managers this looks like a legal trap: Make a misstep and the problem employee is empowered, and the manager is paralyzed in dealing with that employee in the future.

This is really not true. Congress has given federal managers both tools, and the U.S. Court of Appeals for the Federal Circuit has ruled that managers are free to use either system. Both tools work, but one may work better than the other depending on the situation.

Let’s take an example of a problem employee we will call Jim. Jim’s job requires him to coordinate projects with other agencies and with the public. Jim’s projects often run behind schedule. Jim also is rude to his counterparts in other agencies and to members of the public. Is this performance or conduct? It could be either.

Since Jim’s job requires him to coordinate projects and deal effectively with others, he should have at least two critical elements in his performance plan, one dealing with coordinating projects and the other setting expectations on interpersonal skills. When Jim has been on his performance plan for at least 90 days, or longer if an agency’s performance system requires it, Jim’s manager can evaluate Jim’s performance as unacceptable and put Jim on a performance improvement plan (PIP). If Jim’s unacceptable performance continues, his supervisor can propose removal or demotion under the performance adverse action system. Jim’s appeal to the Merit Systems Protection Board (MSPB) or an arbitrator will be judged by an evidentiary standard that is favorable to the agency. This is called a performance case.

Jim’s behavior may also be considered misconduct because it affects the efficiency of the service. Efficiency of the service is the statutory standard that managers must use in disciplining employees using the misconduct system. If the case goes before MSPB or an arbitrator, Jim’s supervisor must show a relationship between the efficiency of the service and Jim’s failure to coordinate projects and have a good attitude. Jim’s behavior need only be proved by a preponderance of the evidence, so Jim’s supervisor has to show that it is more likely true than not that Jim’s failure to coordinate projects and his bad attitude occurred. Usually, the supervisor’s testimony and contemporaneous documentation are sufficient.

In the example of Jim, either the performance or misconduct system works because Jim’s misconduct relates specifically to a performance standard. So, it really does not matter whether it is called performance or misconduct. What matters is whether the legal requirements of either system have been met.

A misconduct case must be proved by a preponderance of the evidence and must show some relationship to the efficiency of the service. The so-called “Douglas factors” — such as seriousness of the offense, past record, notoriety, similarity with penalty received by others — apply. An MSPB judge or arbitrator may review the appropriateness of a penalty. Essentially, this means that minor misconduct is grounds for removal only if it is repeated. A misconduct case can be taken without consideration of how long ago the misconduct occurred.

A performance case must be based on performance that occurred within the past year and was repeated after notice and placement on a PIP. Failure to perform must relate to failure to meet a performance standard, as opposed to efficiency of the service in a misconduct case.

The agency need only prove a performance case by substantial evidence, a lower burden of proof than the preponderance of the evidence needed in a misconduct case.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to

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