U.S. flagAn official website of the United States government
      Here's how you know **The .gov means it’s official.**
            
            Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.
 **The site is secure.**
            
            The **https://** ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.


U.S. Merit Systems Protection Board
 Menu


close HomeAbout
    About the MSPB	
			Contacts & Locations
			Equal Employment Opportunity
			Information Quality Standards
			No FEAR Act
			Open.Gov
			Organization
			Plans, Budget & Performance
			Privacy Program
           Merit System Principles
	Prohibited Personnel Practices
	 Site Index and SearchAppeals
    Appeal Process
						Appellant Q&A
    Electronic Filing
    Forms
    Hearing Sites
    Policy & Resources
    Regulations
    Whistleblower Q&A 
	Electronic Filing  
	Mediation Appeals ProgramDecisions
    Case Reports
Nonprecedential Decisions
		Precedential DecisionsStudies & Publications
       About & Contact Studies
		Latest Publications
		Newsletters
		Reports
          Research Briefs
		Search StudiesSurveys of Federal Employees Public & Information Services
    Accessibility
		   Contracting & Procurement
			  Federal Register Notices
		      FOIA Program
				 e-FOIA Reading Room
        Submit a FOIA Request
           FOIA Reports 
			Information Collections
			Jobs & Internships
	Press Releases & News
	Privacy Program
				Regulations
			    Technical Support Search small
Search




Home
        Prohibited Personnel Practices
        Frequently Asked Questions
          1- Non-Discrimination
          2 - Proper Considerations
          3 - Coercing  Political Activity
          4 -  Obstructing the Right to Compete for Employment
          5 - Influencing  Withdrawal from Competition
          6 - Granting  Any Preference or Advantage Not Authorized by Law
          7 - Nepotism
          8 - Whistleblower Protection
          9 - Protection Against Retaliation
          10 - Conduct Not Adversely Affecting Performance
          11 - Violating Veterans' Preference
          12 - Violating Merit System Principles
          13 - Nondisclosure Forms, Policies & Agreements
          14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 10: Conduct Not Adversely Affecting Performance
    Prohibited Personnel Practice of the Month**Number 10:
           Conduct Not Adversely Affecting Performance**
        Any employee who has authority  to take, direct others to take, recommend, or approve any personnel action,  shall not, with respect to such authority—
        discriminate for or against any employee or applicant for employment on the  basis of conduct which does not adversely affect the performance of the  employee or applicant or the performance of others; except that nothing in this  paragraph shall prohibit an agency from taking into account in determining  suitability or fitness any conviction of the employee or applicant for any  crime under the laws of any State, of the District of Columbia, or of the United  States.***Where can I find this provision?***
    This month's prohibited personnel practice (PPP) is part of the Civil Service Reform Act of 1978 (the Reform Act), Pub. L. No. 95-454, 92 Stat. 1111. Like the other  prohibited personnel practices discussed in this series, it is codified at 5 U.S.C. §  2302(b).
    ***What is the purpose of this provision?***
      This provision supports the second and the eighth Merit System Principles that  all employees and applicants for Federal employment should on the merits receive  fair and equitable treatment in all aspects of personnel management with proper  regard for their privacy and constitutional rights and should be protected  against arbitrary action and personal favoritism. 5 U.S.C. §§ 2301(b)(2), 2301(b)(8)(A).  The Merit  Systems Protection Board (MSPB or Board) examined the legislative history of section 2302(b)(10) in  Merritt v. Department of Justice, 6 M.S.P.R. 585 (1981), distinguished by  Kruger v. Department of Justice, 32 M.S.P.R. 71 n. 2 (1987).  During deliberations, Representative Harris,  who moved for the adoption of section 2302(b)(10), explained:   “The amendment adds to the prohibited practices this provision which  would bar an official from taking action against any employee or applicant for  employment as a reprisal for non-job related conduct.  I think it is clear to prohibit  discrimination against activities that have no bearing on one's job.  Psychiatry, outside interests, a member of ‘NOW’  or ‘Taxpayers Alliance’ or what have you.”  Merritt, 6 M.S.P.R. at 602.  The Board has  held that section 2302(b)(10) is designed to prohibit personnel practices  that are taken in response to an employee's off-duty conduct or interests that  are unrelated to job performance.  Thompson v. Farm Credit Administration, 51 M.S.P.R. 569 n. 16 (1991) (citing Garrow v. Gramm, 856 F.2d 203, 207 (D.C. Cir. 1988)).

    ***What must be shown to establish a violation  of this provision?***
      The Board has not established the precise elements for proving a violation of 5 U.S.C. §  2302(b)(10). MacLean v. Department of Homeland Security, 116 M.S.P.R. 562, ¶ 25 (2011), review  reinstated by 460 Fed. Appx. 927 (Fed. Cir. 2011).  Depending on the specific facts and circumstances,  the proscription of section 2302(b)(10) may be analogous to either (1) the  prohibition against retaliation for exercising appeal rights, filing  grievances, etc., found at 5 U.S.C. §  2302(b)(9), or to (2) a  traditional claim of discrimination governed by the principles of Title  VII.  Id.
    ***In what kinds of situations does this  practice typically arise?***
      Initially,  this PPP was addressed by the Board shortly after the Reform Act on the  question of whether the agency could rely on a rebuttable presumption of nexus  or a connection to the efficiency of the service for certain off-duty or criminal  misconduct.  See Johnson v. Department of Health  & Human Services,  22 M.S.P.R. 521, 524 (1984) (citing to Merritt, 6 M.S.P.R. at 606).  More recently, this PPP has been addressed by  the Board on the question of whether the agency’s otherwise appealable action  constituted discrimination on the basis of sexual orientation, political  beliefs, or participation in certain organizations.  See Mahaffey v. Department of  Agriculture,  105 M.S.P.R. 347, ¶ 23 (2007).
 
    ***How do I pursue a claim that someone violated  this provision?***
      The OSC receives and investigates claims of prohibited personnel practices, including  this provision.  5 U.S.C. § 1214(a)(1)(A).  If  OSC concludes that there has been a violation, it may request that MSPB take disciplinary  action against the violator.   Id. § 1215.  The Special Counsel also may  petition the Board for corrective action on behalf of a person who has been or  is about to be subjected to a prohibited personnel practice under section  2302(b)(10).  Id. § 1214(b)(2)(C).  In both types of proceedings, the case will be  heard by an administrative law judge who will make an initial decision that can  be appealed to the full Board.  5 C.F.R. §§ 1201.125, 1201.131.
    An individual employee also could raise this  provision as an affirmative defense to an agency’s adverse personnel action  that is within MSPB’s jurisdiction, such as a removal.  5 U.S.C. § 7701(c)(2)(B).  Absent  an otherwise appealable matter, MSPB (as opposed to OSC) does not have  jurisdiction to hear a claim by an individual that this provision has been  violated.  See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871‐73 (D.C. Cir. 1982).
    ***What penalties may the Board impose for  violations of this provision?***
      In a disciplinary action brought by the Special Counsel, the penalties the  Board may impose include reprimanding, suspending, demoting, or removing the  offender from Federal employment; prohibiting the offender from working for the  Federal Government for up to 5 years; and imposing a fine of up to $1000. 5 U.S.C. § 1215(a)(3).
    ***Are there exceptions to this practice?***
      Yes.  As authorized by the last  provision of § 2301(b)(10), under 5 C.F.R.  § 731.202, OPM  or an agency with delegated authority, may consider criminal or dishonest  conduct against an applicant, appointee, or employee in determining  suitability.
    ***Has MSPB studied this practice?***
      Yes.  In its report Prohibited Personnel Practices: Employee Perceptions, the Board reported that in 2010, 2.0  percent of respondents perceived that they were personally affected by discrimination  in favor or against someone in a personnel action on the basis of off-duty conduct  which was entirely unrelated to the job.   An additional 5.6 percent reported that they observed such  discrimination without being personally affected.  Id. at 36.  Also, 1.1 percent reported they were  personally affected by discrimination based on sexual orientation, while 3.2  percent reported observing the discrimination without being personally affected.  Id. at 34.


Return to top


About MSPB
			  Accessibility
           Budget and Performance
          FOIA
          Info Quality Standards
          No FEAR Act
    
          Office of the Inspector General
          Privacy Program   
           Technical Support       USA.gov
		OSC.gov
				 Vote.gov


U.S. Merit Systems Protection Board
 Agency Contact Center (202) 653-7200
          mspb@mspb.gov