On January 15, 2010, the Merit Systems Protection Board issued its latest decision in the long-running case of Doe v. Department of Justice, 2010 M.S.P.B. 16. On remand from the U.S. Court of Appeals for the Federal Circuit (565 F.3d 1375 (2009)), a decision previously analyzed in the Federal Legal Corner, available at http://www.passmanandkaplan.com/CM/FederalLegalCorner/FederalLegalCorner124.asp, the Board provided detailed analysis of its nexus standard in the context of proposing adverse actions against employees for their off-duty conduct.

The underlying facts of this case involve proposed discipline against Doe for Doe’s alleged nonconsensual videotaping of off-duty consensual sexual encounters, on separate occasions, with three women (two of whom were Doe’s coworkers). Word of the videotaping reached both the women involved and other employees in the relevant office, leading to extensive rumors and the women involved seeking hours of counseling with their supervisors. The news media also eventually learned of these incidents. Management ordered an investigation of the incidents and proposed Doe’s removal. The Board’s opinion notes that this videotaping apparently did not constitute a violation of the pertinent state criminal statute, although evidence in the record suggests that agency management’s decisions to investigate the incident and to discipline Doe were motivated in part by their belief that the conduct in question was potentially criminal.

The Federal Circuit remanded the case to the Board for further proceedings on several issues, including: articulation of a nexus standard for when private misconduct that is not criminal rises to the level of misconduct that adversely affects the efficiency of the service; determination if Doe’s conduct impacted the agency’s ability to perform its responsibilities; determination if the agency would have imposed discipline absent the decision makers’ erroneous assumption of a criminal violation; and determination if the Agency would have imposed removal absent the decision makers’ erroneous assumption of a criminal violation.

Since adverse actions under Chapter 75 can only occur to promote the efficiency of the service, an agency proposing an adverse action for off-duty conduct by the employee must show a nexus between the off-duty misconduct and efficiency of the service. Under the Board’s preexisting nexus case law, such nexus can be shown three ways: presumed nexus in particularly egregious circumstances; showing that the misconduct adversely affects the appellant’s or coworkers’ job performance or the agency’s trust and confidence in the appellant’s job performance; or showing that the misconduct interfered with or adversely affected the agency’s mission. Both the Board and the Federal Circuit held that ‘egregious circumstances’ did not exist in this case. The Board further held that Doe’s alleged misconduct did not adversely affect the agency’s mission since the FBI’s mission did not include the prevention of surreptitious, non-criminal videotaping of consensual sexual encounters.

The Board did find nexus, however, on the basis that the misconduct adversely affects the appellant’s or coworkers’ job performance. The Board focused on the issue of degradation of office productivity, discussing in detail (a) the distress of the female coworkers involved inhibiting their own productivity, (b) the hours of management time diverted from work to counseling the female coworkers involved, (c) general loss of workplace productivity to time spent discussing rumors of the videotaping incidents, and (d) time spent by the agency’s press officer dealing with media inquiries into the videotaping incidents. Also referenced was testimony from management regarding the level of disruption caused by the agency’s investigation into these incidents, an investigation which both the Board and the Federal Circuit had found properly initiated under the circumstances. However, the Board distinguished the videotaping of Doe’s sexual encounter with the non-agency employee, narrowly finding no nexus on the basis that Doe’s own performance was unaffected by that incident and that the agency had failed to show that this other incident had disrupted office operations at the agency.

Because the remaining issues required additional development of the record before findings of fact could be made, the Board remanded the case to the administrative judge for determination if the agency would have imposed discipline absent the decision makers’ erroneous assumption of a criminal violation and determination if the agency would have imposed removal absent the decision makers’ erroneous assumption of a criminal violation. The Board further instructed the administrative judge to determine if the removal penalty imposed was reasonable, as one of the specifications cited in proposing the adverse action (the videotaping of Doe’s sexual encounter with the non-agency employee) failed due to lack of nexus.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com