The U.S. Court of Appeals for the Federal Circuit recently affirmed a decision of the Merit Systems Protection Board which had in turn previously affirmed the Social Security Administration’s removal of an employee for deficient performance. In Salmon v. Social Security Administration, No. 2011-3029 (December 9, 2011), Victoria Salmon, a former service representative with the SSA, unsuccessfully argued to the Federal Circuit that the Performance Assessment and Communications System (PACS), the performance appraisal system which governed her performance plan, was unlawful for three reasons: 1) PACS failed to adhere to Congress’ requirement that performance appraisal systems be as objective as possible; 2) that her own performance standards did not meet the criteria for employee participation in their development; and 3) that PACS had not been legally approved by the Office of Personnel Management.

Regarding the first issue, Salmon argued that SSA should have used more quantitative (e.g., numerical) criteria for her standards. The court pointed out that Salmon’s performance plan had four critical elements and numerous elaborating bullet points. Moreover, Salmon’s supervisor gave her direct and precise feedback regarding her performance and areas where she needed to improve. The Federal Circuit cited a leading 1985 case entitled Wilson v. Dept. of Health and Human Services, 770 F.2d 1048 (Fed. Cir. 1985), where it had held that "objective" did not necessarily mean quantitative, and that supervisory instructions could count toward the "objective" component of the standards. The court stated that a standard "should be sufficiently precise and specific as to invoke a general consensus as to its meaning and content." Thus, the court found that there was nothing unlawfully subjective about Salmon’s performance standards.

The court looked to the congressional intent behind allowing the employees to participate in the development of their own standards. In sum, the court found that while employees can have some say in the creation of performance standards, much discretion was left to the agency to determine what this "say" or "input" was. In this case, the Federal Circuit noted that PACS was specifically endorsed by the union, and that employees were all judged on identical performance standards. Thus, the court rejected Salmon’s second argument.

Salmon also claimed that if an agency alters a previously OPM-approved performance appraisal system, it needed to re-seek approval with OPM. In this case, Salmon pointed out that OPM approved SSA’s performance approval system in 1995, but that PACS began in 2005. Thus, she argued it needed to be again reviewed by OPM. However, the Federal Circuit found that PACS was substantially similar to the system approved by OPM in 1995 as it had made a framework-type review. The court thus rejected Salmon’s third argument and affirmed the removal.

The decision serves as a reminder to federal employees as to the difficulties in appeals of performance-based removals or demotions. Although appeals or replies to performance-based removals or demotions frequently are aimed at allegedly defective performance standards, federal employees should also concentrate on procedural errors when performance-based actions are proposed and/or taken against them.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.