Does a Performance Appraisal Have to Be Considered in Removal?

A passport specialist removed in part for performance issues argues it was harmful error not to consider his latest performance appraisal in deciding his appeal.

The decision is Valles v Department of State (CAFC No. 2020-1686, 10/29/2021). The fact summary is taken from the appeals court’s decision. 

Mr Valles worked eight years as a passport agent for Department of State, most recently in Colorado. In 2016 he was suspended for three days for making inappropriate sexual and political comments to members of the public and coworkers. In 2018 he was suspended for five days for failure to follow instructions and for failing to protect personal information. 

Having just received a fully successful rating in February 2019, the agency proposed his removal about a month later based on four charges and 18 specifications: failure to follow instructions with 11 specifications, failure to protect personal information with one specification of leaving a passport in a copier, failure to follow policy in the processing of passport applications (5 specifications including not protecting his passport adjudication stamp and not properly handling incoming passport fees), and improper personal conduct (drinking from a wine glass in view of the public).

The Department removed Mr. Valles. He appealed to the Merit Systems Protection Board. The Board sustained the removal, finding that the agency had proved the charges and specifications, and had demonstrated the removal was the appropriate penalty. In doing so, the MSPB judge did not take into consideration the 2019 performance appraisal, finding that the facts added up to misconduct.

Mr. Valles’ primary argument before the appeals court was that it was error to uphold performance related charges since he had just received a fully successful rating and that failure to consider that performance rating constituted harmful error.

As to the failure to follow instructions charge with 11 specifications, the Board had ruled that in this case Valles’ behavior fell into the misconduct category rather than performance and declined to consider the performance evaluation for that reason. The court agreed with Valles that the MSPB should have considered the recent performance appraisal in making its decision to sustain that charge, stating “Issues of performance and misconduct may overlap.” (P. 4) The government admitted that this charge overlapped with the performance appraisal. The court found that given this, it was error on the part of the MSPB to not consider the evaluation. In doing so, the court was quick to point out, “In so holding, we do not suggest that the existence of a fully successful performance evaluation bars discipline for matters covered by that evaluation, but merely that the evaluation must be considered in making the determination.” (P. 5)

However, the court held that this was not harmful reversible error. It was Valles’ burden to prove harmful error; he had to show how consideration of the evaluation would have changed the outcome.  Valles did not dispute that the various events giving rise to the 11 specifications supporting Charge One had occurred; moreover, 5 of the 11 events occurred following his 2019 evaluation period, and there was a long string of events where he failed to follow instructions. Given this, the court held that any error was not harmful. (Pp. 4-6)

As to Valles’ argument that the evaluation was required to be considered in determining whether the penalty was reasonable, given that some of the underlying events were covered by the evaluation period, the court agreed that MSPB should have considered it when it determined that the penalty was reasonable under the circumstances.  (P, 6). But, again, the court goes on to hold that Valles did not make the case that this was harmful error. As the court notes, while MSPB did not consider it in sustaining his removal, the agency deciding official clearly had taken the appraisal into account in his meticulous letter weighing the required factors (the Douglas factors) as he determined appropriate penalty. Further, the Board was not likely to change its opinion as to the reasonableness of removal if it had considered the performance appraisal.  Failure to follow instructions “is undoubtedly a serious matter when it occurs repeatedly over a prolonged period.” (P. 7)

Finding the remainder of Valles’ contentions “without merit,” the court has sustained the MSPB and the agency’s removal of Valles. (P.9)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.