By Ann Boehm, January 11, 2022

Throughout almost 30 years of working in Federal personnel law, one of the mantras that bothers me the most is the one used by many personnel practitioners to decide whether an employment issue is performance or misconduct: “If the employee can’t do it, it’s performance. If the employee won’t do it, it’s misconduct.”

My reaction to this statement is remarkably consistent: “Huh?!”

Seriously, what does this mean? If you want to get very legalistic about it, this mantra is assigning intent to whether an employee should be placed on a performance improvement plan or disciplined. No intent (can’t) = performance. Intent (won’t) = misconduct. That just doesn’t make sense.

I see how a willful failure to perform – “won’t,” if you will – could be misconduct. But a willful failure to perform can also be performance. And if somebody can’t do what they are expected to do, does that excuse them from engaging in misconduct? I think not.

In 2014, I attended FELTG’s MSPB Law Week training. FELTG Grand Poobah Emeritus Bill Wiley explained that “can’t vs. won’t” doesn’t make any sense (agreed, agreed, agreed; applause, applause, applause). As Bill explained it, the proper test for performance versus conduct simply requires examination of the critical elements in the performance work plan. If an employee is unacceptable on any one critical element in the plan, it’s performance. Otherwise, it’s misconduct.

Hooray! Life changing! This makes so much sense!

We at FELTG continue to teach performance versus misconduct in this way. It’s totally logical. “Can’t versus won’t” is not. But sadly, “can’t versus won’t” just will not go away.

Even the MSPB has used the illogical “can’t versus won’t” analysis. In Valles v. Dep’t of State, MSPB LEXIS 25 (M.S.P.B. Jan. 6, 2020), the appellant challenged his removal. He argued that a fully successful performance rating undermined the agency’s proof of the misconduct charge “failure to follow instructions.”

Let’s just stop right there. The appellant received a fully successful performance rating. He was acceptable on all of his critical elements. If you use the FELTG approach, this could not be a performance case. It had to be misconduct.

The MSPB, however, did not use the very wise and logical FELTG approach. The administrative judge explained that a “failure to follow instructions” charge requires an agency to show that the employee “(1) was given proper instructions, and (2) failed to follow the instructions, without regard to whether the failure was intentional or unintentional.Id. at *19 (emphasis added). Even though intent is not relevant to a failure to follow instructions charge, somehow the AJ was persuaded by the agency witnesses’ testimony that “performance involves an employee who ‘can’t do,’ while misconduct involves an employee who ‘won’t do.’” Id. at *25. (Sounds like an intent analysis to me.) Apparently, the appellant was a classic “won’t do.” That was good enough for the AJ to find the agency proved the failure to follow instructions charge.

Arghhhhh!! This makes no sense!

The Federal Circuit reviewed the MSPB’s decision and affirmed the removal. Valles v. Dep’t of State, No. 2020-1686 (Fed. Cir. Oct. 29, 2021). Unfortunately, the court did not question the AJ’s “can’t versus won’t” analysis. However, it did not rely upon it either. The court pointed out that “[i]ssues of misconduct and performance may overlap” and “following instructions can fall within this area of overlap.” Id., slip op at 4.

The performance and conduct overlap is precisely why agencies struggle with whether to pursue a matter as performance or misconduct. An easy tool is needed to help with this decision-making process.

Guess what that easy tool is. NOT “can’t versus won’t.” Trust me. It’s the FELTG way. Failing a critical element means it is performance. Otherwise, it is likely misconduct.

It’s important to understand what else the court held with regard to this performance/ misconduct overlap. The court determined that appellant’s fully successful performance evaluation was relevant and had to be considered in assessing the proof of the charged misconduct as well as the penalty (in the Douglas factor analysis).

Agencies need to consider the impact of a fully successful evaluation on a related misconduct case. That being said, the court noted “that the existence of a fully successful performance evaluation” does not bar “discipline for matters covered by the evaluation,” only “that the evaluation must be considered” in determining whether the discipline was appropriate. Id. at 5. Fortunately for the agency in Valles, the court found that even though the AJ erred in not considering the fully successful appraisal, the employee was so bad that removal was justified – no harmful error there. Id. at 5-6.

My friends, we at FELTG want to make the crazy Federal personnel world easier for you to navigate. Resolve in 2022 to stop relying on “can’t versus won’t” in deciding between a performance or misconduct action. Rely on a review of the performance plan’s critical elements. We don’t make this stuff up. We want to help. And that’s Good News. Boehm@FELTG.com

Join FELTG for the live virtual training MSPB Law Week March 28-April 1.

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