The performance plan defined fully successful performance for each critical element, but not the minimally successful level to avoid removal. Image: Andrii Yalanskyi/Shutterstock.com
By: FEDweek StaffThe MSPB has reversed a performance-based removal of an employee, saying the agency used “backwards” performance standards that specified only what the employee shouldn’t do, not what she should do.
Case No. 2024-14 involved an employee removed on charges of unacceptable performance in three critical elements of her position, following a performance improvement period. An MSPB hearing officer and now the full board ruled the standards invalid, though, citing the principle that performance standards “must set forth in objective terms the minimum level of performance which an employee must achieve to avoid removal for unacceptable performance.
The decision said that while the employee’s performance plan—using the common five-level rating system—“only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal.”
It added: “An agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP. However, at whatever point in the process they are communicated, standards that fail to inform an employee of what is necessary to obtain an acceptable level of performance and instead describe what she should not do are invalid backwards standards.”
The board said that in this case, “we find no basis for concluding that the agency’s backwards performance standards, which needed more than simple fleshing out, were entirely rewritten or otherwise cured.” The PIP notice did not explain what was necessary to be rated minimally successful and avoid removal because it did not differentiate between minimally successful and unacceptable performance, it said.
It ordered the employee reinstated with back pay, interest and benefits.
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