By Deborah Hopkins, May 16, 2022
One of the considerable ways in which Federal employment is different from at-will employment, is that the Civil Service Reform Act allows a Federal agency to fire a career employee only for cause (with a few exceptions we won’t get into today).
An adverse action may be brought “only for such cause as will promote the efficiency of the service.” 5 USC 7513(a); 5 CFR 752.403. This is where we get the nexus requirement. A nexus is defined as a connection or a link.
The specific charges, no matter how they’re drafted, are notice concepts that relate to due process, but efficiency of the service is the legal criteria. The agency needs to prove two things in an adverse action:
- The reason, charge, and specified conduct (by the employee) occurred, and
- The action (taken by the agency) promotes the efficiency of the service.
Miller v. Dept. of Interior, 119 MSPR 331 (2013)
In law, as well as logic, there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his/her/their duties satisfactorily or some other legitimate government interest promoting the “efficiency of the service.” Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977).
It’s dangerous for agencies to assume the nexus is clear. In most cases, even if an employee engages in egregious criminal conduct, the agency should not rely merely on speculation or an unfounded assertion that the misconduct impacts the efficiency of the service; the agency has the burden of establishing the nexus by specific evidence. Douglas v. Veterans Administration, 5 MSPB 313, 334 (1981); Allen v. U.S. Postal Service, 2 MSPB 582, 584 (1980).
If the misconduct occurs on duty, or using agency resources, it is much easier for the agency to show nexus. MSPB has said it is well-settled that there is a sufficient nexus between an employee’s misconduct and the efficiency of the service when … the conduct occurred at work. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP), citing Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). But what if the misconduct occurs off-duty?
The MSPB generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service:
- a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct;
- a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and
- a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. \
See, e.g., Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521, 526 (1984); Merritt, 6 M.S.P.R. at 590-606; Gallagher v. U.S. Postal Service, 6 M.S.P.R. 572, 576-77 (1981).
Here’s an example where the agency properly established nexus: The agency charged the appellant with conduct unbecoming and removed him after it learned the appellant had consensual romantic relationships with three subordinates. Even though no agency policy prevented such relationships, the Board upheld the removal because the agency showed the relationships affected his supervisory role, his interaction with his subordinates was negatively affected, and the appellant’s supervisor lost confidence in the appellant’s judgment. Robacker v. USDA, Fed. Cir. No. 2009-3289 (July 9, 2010)(NP).
And here’s an example when the agency did not properly establish nexus: An FBI agent filmed sexual encounters of himself and another agent without her knowledge. The FBI removed the appellant and using the concept of “clearly dishonest” behavior to establish nexus between the misconduct and the efficiency of the service. The Federal Circuit found the agency’s nexus argument to be too vague. Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009).
Nexus is too important to skip over, so join FELTG and instructor Bob Woods on June 7 for the 60-minute webinar Got Nexus? Accountability for Off-duty Conduct. [email protected]
