Federal employees are removed every year for “performance” problems that are actually conduct issues, and for “conduct” issues that are actually failures of performance. When agencies get this wrong, the consequences are severe: employees lose their jobs, their retirement trajectory, and often their security clearances — all because management charged the wrong legal theory.

Understanding how agencies choose a charge, why they mischarge, and how to fight back is one of the most powerful tools you can have as a federal employee.

As federal employment lawyers who have served inside DHS, TSA, CBP, DOJ, and other agencies, our team at the National Security Law Firm has seen firsthand how these mistakes happen — and how to beat them.

This is the most comprehensive resource on the internet explaining the “conduct vs. performance” distinction, how agencies misuse it, how MSPB judges analyze these cases, and how to fight a mischarged case for maximum mitigation or dismissal.

Throughout this guide, we link to our Federal Employment Defense Hub so you can dive deeper into related issues using real examples and insider strategy:
👉 federal employment lawyers

What Is “Performance” Under Federal Law?

Under 5 U.S.C. Chapter 43, performance issues involve an employee’s inability to meet established critical elements of their job — even though they are trying.

Key features of performance cases:

  • The problem arises from deficiency of skill, ability, or knowledge

  • The employee is trying but failing

  • Management must give a PIP (Performance Improvement Plan)

  • The standard is “Unacceptable Performance”

  • To remove, agencies must show the employee failed one or more critical elements

  • The burden of proof is substantial evidence (lower than in conduct cases)

A performance action is not appropriate when the employee’s behavior is willful, negligent, reckless, or within their control.

Performance = inability.

What Is “Conduct” Under Federal Law?

Conduct issues arise under 5 U.S.C. Chapter 75 — when the employee can meet expectations but does not due to choice, willfulness, negligence, recklessness, attitude, or inappropriate behavior.

Examples:

Conduct = behavior within your control.

Why Agencies Mischarge: The Five Common Patterns

1. They Want a Fast Removal and Misuse Chapter 75

Agencies sometimes avoid Chapter 43 because performance removals are hard to win.
So they call performance issues “conduct” to skip the PIP.

2. They Want to Avoid the Douglas Factors

When an employee has strong mitigation evidence:

  • Long tenure

  • No discipline

  • Medical issues

  • Harassment

  • Heavy workload

  • Retaliation context

…the Douglas factors help the employee.
Classifying the issue as “performance” allows management to avoid them.

Douglas factors link:
👉 Douglas factors

3. The Supervisor Doesn’t Understand the Legal Distinction

Many supervisors have never taken a single MSPB or adverse-action course.
They punish everything the same way.

4. They Don’t Want to Invest Time in a PIP

PIPs require:

  • Coaching

  • Documentation

  • Work samples

  • Weekly meetings

Many managers skip this by calling performance failure “failure to follow instructions.”

5. They Want to Strengthen a Weak Case

Converting a performance problem into a misconduct charge makes the case appear more serious — even when the facts don’t support it.

How Mischarging Damages Federal Employees

A mischarged action can:

  • Increase the penalty

  • Shortcut your procedural rights

  • Undermine your security clearance

  • Reduce chances of reinstatement

  • Make future federal hiring more difficult

  • Remove you without due process

For example:
A specialist who struggles to meet data-entry quotas because of outdated software should be handled under Chapter 43. If the agency mislabels it “failure to follow instructions,” the employee loses the right to a PIP and may be removed improperly.

How to Identify a Mischarge in Your Case

Here are diagnostic questions we use as federal employment lawyers when evaluating a mischarged case:

1. Was the employee trying to do the work?

If yes → performance.
If no → conduct.

2. Was the deficiency tied to skill, knowledge, or ability?

If yes → performance.

3. Was the problem within the employee’s control?

If yes → conduct.

4. Was there disrespect, defiance, or attitude?

If yes → conduct.

5. Did management avoid a PIP?

If yes → likely mischarged.

6. Did the supervisor document performance standards?

If not → they cannot legally support a performance removal.

7. Is there a medical issue?

Medical causes point toward performance, not conduct.

MSPB’s Approach to Mischarge Cases

MSPB judges look at:

  • The true nature of the behavior

  • Whether standards existed and were communicated

  • Whether the employee could perform but didn’t, or couldn’t perform despite effort

  • The burden of proof

  • Whether the agency required a PIP

  • Whether the penalty fits under the Douglas factors

Judges have tossed removals entirely when the agency charged conduct but the real issue was performance. Judges have also reversed performance removals where the agency really alleged misconduct.

Examples of Common Agency Mischarging

1. “Failure to Follow Instructions” for an Employee Who Lacks Training

Real issue: performance.
Agency’s charge: misconduct.
Why it’s mischarged: employee is trying but cannot meet expectations.

2. “Conduct Unbecoming” When the Problem Is Poor Work Quality

The agency’s morale frustration is not misconduct.
It’s performance.

3. “Unacceptable Performance” When the Employee Is Defiant

The employee is capable but refuses.
This is insubordination, not poor performance.

4. “Negligence” When the Real Issue Is Lack of Resources

If the agency fails to provide training, tools, or staffing, it cannot charge conduct.

How to Fight a Mischarged Case

Step 1: Diagnose the Problem Type

Before responding to a proposal or filing an MSPB appeal, you must categorize the underlying issue:

  • Lack of skill?

  • Poor attitude?

  • Lack of resources?

  • Medical impairment?

  • Instruction confusion?

Your response strategy depends on this.

Step 2: Compare the Charge to the Underlying Facts

Ask:
Does the charge match what actually happened?

Step 3: Attack the Required Elements

Each charge has elements.
When the charge is wrong, the elements fail.

Step 4: Use Douglas Factors to Seek Mitigation

Even if the charge sticks, the penalty can often be lowered significantly with a strong Douglas presentation.

Step 5: Expose Supervisor Bias or Retaliation

Mischarging is extremely common in:

  • Whistleblower retaliation cases

  • EEO retaliation

  • Union activity

  • Protected disclosures

Step 6: Build a Clear Narrative

Explain to the deciding official that the agency fundamentally misunderstood the nature of the problem.

Hypotheticals: When Agencies Mischarge

Hypothetical 1: The Overloaded Analyst

A GS-12 analyst misses deadlines because she has five times the normal workload.

Agency charges: Failure to follow instructions
Real issue: Performance
Defense strategy: Lack of resources + no PIP + unfair charge.

Hypothetical 2: The Defiant Employee

An employee refuses to input data after being told to do so.

Agency charges: Unacceptable performance
Real issue: Insubordination
Defense: Charge fails because employee was capable but willfully refused.

Hypothetical 3: The Miscommunicated Process

A specialist makes repeated mistakes because the process changed but management never provided training.

Agency charges: Negligence
Real issue: Performance
Defense: Mischarge → no misconduct → substantial evidence fails.

FAQs About Conduct vs. Performance

Is it better to be charged with conduct or performance?

Usually performance, because a PIP gives time to improve and Douglas does not apply.

Can agencies use both conduct and performance charges together?

Yes, but they often misuse them.

If my supervisor mischarged my case, will MSPB throw it out?

Sometimes. Other times they mitigate. It depends on the severity of the error.

Does mischarging affect my security clearance?

Yes. Conduct allegations raise clearance flags. Performance does not.

Should I respond to a proposal myself?

No. These are high-stakes cases with complex distinctions that agencies exploit.

Why Choose NSLF for Federal Employment Cases

At NSLF, your case is handled by former DHS, TSA, CBP, and DOJ attorneys who used to sit in the same conference rooms where agencies built these cases.

Our advantages:

  • Insider knowledge from former agency counsel

  • Attorney Review Board collaboration on major cases

  • Nationwide representation

  • 4.9-star Google rating

  • Disabled-veteran-founded firm culture

  • D.C.-anchored federal practice

  • Laser-focused strategy to maximize case value

  • Flat fees + Affirm financing

  • Experience at MSPB, EEOC, and OSC

No civilian law firm matches our insider advantage.

Federal Employment Defense Resource Hub

For deeper strategy guides, case studies, and insider breakdowns of federal discipline, visit our Federal Employment Defense Resource Hub:
👉 federal employment lawyers

Book a Free Consultation

If you’re facing a performance or misconduct charge — or you suspect the agency mischarged your case — contact us immediately. The sooner we get involved, the more options you have.

👉 https://www.nationalsecuritylawfirm.com/book-consult-now/

National Security Law Firm: It’s Our Turn to Fight for You.