Federal Manager's Daily Report

A federal appeals court has clarified an agency’s responsibility to notify an employee of performance-related issues before taking disciplinary action on those grounds, saying such a notice need not have been made to the employee during the same ratings cycle during which the disciplinary action was taken.

The case before the Court of Appeals for the Federal Circuit involved an employee who had been placed on a performance improvement plan during the last three months of the 2017 appraisal period. However, the action was not taken until the 2018 period, and the employee appealed on grounds that the agency had not met its obligations under the law to provide notice of alleged inadequate performance “during the appraisal period.”

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The court said that language “does not require that the warning come at any particular time, but rather requires that the warning relate to inadequacies that occurred during the same appraisal period for which the written performance standards were communicated” and it “focuses only on the time when the inadequacies occurred, placing no condition on when the notification or warning occurs.”

The court also rejected arguments that the agency failed to meet its obligation to provide an opportunity to improve and that the standards of the PIP were unreasonable, saying those arguments were based on the employee’s “subjective views of the situation” and that there was substantial evidence to support the hearing officer’s finding that the employee received a reasonable opportunity to improve.

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