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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Connecting the Job and the Offense**(“Nexus”)*

    To implement a suspension, demotion, or removal for misconduct, the  agency must be able to show that the action was “for such cause as will promote  the efficiency of the service.”1  This is often referred to as “nexus” –  meaning that the agency must show a connection between the employee’s conduct  or performance and “the work of the agency, *i.e.*, the agency’s  performance of its functions.”2For some offenses, such as absence without approved leave (AWOL), the  nexus is considered self-evident.3  Many offenses that take place in the  workplace will have a connection to that workplace and thus the work of the  agency performing its functions.4  However, nexus can occur with off-duty as  well as on-duty behavior.The Board has recognized three methods by which the agency may meet  its burden of establishing a nexus linking an employee’s off-duty misconduct  with the efficiency of the service:   (1) a rebuttable presumption of nexus may arise in certain  egregious circumstances; (2) the agency may show, by a preponderance of  the evidence, that the misconduct at issue has adversely affected the employee’s  or co-workers’ job performance or the agency’s trust and confidence in the  employee’s job performance; and (3) the agency may show, by a  preponderance of the evidence, that the misconduct interfered with or adversely  affected the agency’s mission.5
      
      However, agencies must be careful when explaining that the conduct is  egregious because what one person might find clearly egregious, another may  not.  This is particularly true when  considering the impact of off-duty conduct on one’s Federal employment  status.  For example, in *Doe v.  Department of Justice*, the agency determined that the employee’s off-duty  behavior, videotaping sexual encounters with women without their consent,  appeared to have violated state laws and was so egregious that nexus should be  presumed.  However, the agency erred in  its assumptions about legality, as in that particular state, the conduct was  not illegal.  Nevertheless, the Board  initially upheld the removal action, finding there was nexus between the  conduct and the efficiency of the service because the conduct in question was  “clearly dishonest.”6On appeal, the U.S. Court of Appeals for the Federal Circuit (“Federal  Circuit”) noted its prior holdings that “misconduct that is private in nature  and that does not implicate job performance in any direct and obvious way is  often insufficient to justify removal from a civil service position.”7  Because the employee’s conduct was not  illegal in the state where it occurred, the conduct could not be presumed to be  dishonest.  The court therefore remanded  the case back to MSPB with the instruction to “articulate and apply a meaningful  standard” to establish nexus between the conduct of the employee and the  efficiency of the service.8In contrast, the Federal Circuit has repeatedly upheld Board  decisions finding that proven sexual abuse of a child was so egregious that it  creates a presumption of nexus.  For  example, in *Williams v. General Services Administration*, the appellant  pled guilty to a charge of sexual assault on a child and received a 2-year  deferred sentence.  The Board found, and  the court upheld, that nexus could be presumed based on the nature and gravity  of the appellant’s criminal misconduct.   In *Graybill v. U.S. Postal Service*, the court found that the  Board had not erred in finding a presumption of nexus where the appellant had  pled guilty to charges of sexual misconduct involving his minor  stepdaughter.  In *Hayes v. Department  of the Navy*, a presumption of nexus was also found where the appellant was  convicted of assault and battery of a 10-year old girl.9While egregiousness often speaks for itself, damage to management’s  trust in the employee resulting from non-egregious conduct will require more  explanation by management.  For example,  in *Beasley v. Department of Defense*, an employee pled guilty to the  crimes of aggravated assault and petit larceny.   The agency officials explicitly told the Board they could not trust the  employee in light of this criminal conduct, because the employee would have  opportunities to commit theft at work and there were approximately 200 people  who could be injured if the employee became violent at work.  The Board found that management’s articulated  connection between the offenses and their inability to trust the employee in  the workplace established the required nexus to support a removal action, even  though there was “no showing” that her conduct directly interfered with the agency’s  mission.10Similarly, in its review of an arbitration case, the Federal Circuit  was presented with an employee’s removal after conviction for intent to  distribute cocaine.  The agency asserted  that the conviction cast serious doubt on the employee’s judgment and  trustworthiness in a position where an error could put lives at risk.  The court held that because “an agency’s  reasonable loss of trust and confidence” can establish nexus, and given the  trustworthiness needed for the position, the conviction combined with  management’s assertions that trust had been lost established the required  nexus.11The third method to establish nexus, the conduct’s adverse effect on  the mission, can be applied to a mission as broad as that of the agency or as  narrow as that of the job.  For example,  in *Masino v. United States*, the court found presumed nexus for a customs  officer who used marijuana when off-duty in light of the role of his agency in  preventing marijuana from entering the country.12  In *Brown v. Department of the Navy*,  the off-duty conduct was not criminal.   Rather, the emplyee engaged in an adulterous relationship with the wife  of a marine serving abroad.  However, the  purpose of the employee’s job with the Morale, Welfare, and Recreation  Department was to plan activities to enhance the morale of military  personnel.  Because his off-duty conduct  was antithetical to the mission of his job, it could be used to justify his  removal.13The reason why a particular adverse action will help the civil  service operate better will vary by case.   But, for the agency to implement an action under chapter 75 of title 5,  the connection between the offense and the civil service must be present and  agencies should be prepared to explain it.

    1 5 U.S.C. §§ 7503; 7513.
  2*Doe v. Department of Justice*,  565 F.3d 1375, 1379 (Fed. Cir. 2009).
      3*Bryant v. National Science  Foundation*, 105 F.3d 1414, 1417 (Fed. Cir. 1997) (explaining that “the  nexus between the charged offense and the efficiency of the service is  automatic when the charged offense is AWOL”).
      4*See, e.g.,* *Washington v.  Department of Agriculture*, 22 M.S.P.R. 374, 376 (1984) (holding that there  is a clear nexus between an employee falsifying his time and attendance record  and the efficiency of the service); *Winner v. Department of the Air Force*,  10 M.S.P.R. 177, 178 (1982) (holding that nexus was clear when the charged  conduct concerned violation of agency rules).
      5*Scheffler v. Department of the Army*,  117 M.S.P.R. 499, ¶ 10 (2012), *aff’d*,522 F. App’x 913 (Fed. Cir. 2013).
      6*Doe v. Department of Justice*,  103 M.S.P.R. 135, ¶¶ 6-13 (2006).
      7*Doe v. Department of Justice*,  565 F.3d 1375, 1380 (Fed. Cir. 2009).   The court explained that:  “Without  a predetermined standard – *e.g.,* the  legality of the conduct – to clarify when the agency may and may not  investigate the personal relationships of its employees, it is conceivable that  employees could be removed for any number of ‘clearly dishonest’  misrepresentations, from those made to preserve the sanctity of a romantic  relationship to cheating in a Friday night poker game. The danger here is  twofold; federal employees are not on notice as to what off-duty behavior is  subject to investigation and the government could use this overly broad  standard to legitimize removals made for personal or political reasons.  A clear articulation of a standard is therefore  essential to the government’s ability to reasonably and legitimately remove an  agent for off-duty conduct relating to personal relationships.”  *Id*.  at 1381.
      8*Id*.   MSPB was also instructed to revisit the  penalty in light of the lack of criminality in the conduct.  *Id*. at 1383.
      9*Williams v. General Services  Administration*, 22 M.S.P.R. 476 (1984), *aff’d*, 770 F.2d 182 (Fed.  Cir. 1985) (Table); *Graybill v. U.S. Postal Service*, 782 F.2d 1567 (Fed.  Cir. 1986); *Hayes v. Department of the Navy*, 15 M.S.P.R. 378 (1983), *aff’d*,  727 F.2d 1535 (Fed. Cir. 1984).*See Allred v. Department of Health &  Human Services*, 786 F.2d 1128 (Fed. Cir. 1986).
      10*Beasley v. Department of Defense*,  52 M.S.P.R. 272, 275 (1992).
      11*Brook v. Corrado*, 999 F.2d 523,  527 (Fed. Cir. 1993).
      12*Masino v. United States*, 589  F.2d 1048, 1056 (Ct. Cl. 1978).  *See* *Gibbs  v. Department of the Treasury,* 21 M.S.P.R. 646 (1984) (holding that because there is a clear connection  between the Internal Revenue Service’s mission and citizens paying their taxes,  an IRS employee’s failure to pay his taxes met the test for nexus).
      13*Brown v. Department of the  Navy*,  229 F.3d 1356, 1360-61 (Fed. Cir. 2000).


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