On September 23, 2003, an administrative judge of the Merit Systems Protection Board ordered that an employee, who was terminated for allegations of unacceptable performance, be reinstated with back pay and benefits. Gondek v. Dept. of the Army, MSPB Docket No. CH-0432-03-0299-I-1 (9/23/03). The employee had worked as a supervisor of an Area Maintenance Support Activity in Illinois for several years and received satisfactory ratings. However, a couple of years ago, the employee was given a new supervisor. The new supervisor proceeded to rate the employee’s performance as unacceptable. In January 2003, the agency fired the employee for unacceptable performance. The employee filed an appeal to the MSPB and argued, among other things, that his performance was not unacceptable and that the performance standards used by the agency were not valid. After a hearing, the MSPB judge decided that because the agency did not have proper performance standards, it could not terminate the employee.
In the decision, the MSPB judge said that in order for the agency to prove its case, it must prove four elements: (1) the performance standards applied to the employee were valid, (2) the performance standards were communicated to the employee, (3) the employee was given a reasonable opportunity to demonstrate improved performance, and (4) the employee’s performance in at least one critical element was deficient. In this case, each of the employee’s critical elements are rated on 4 possible levels: Excellence; Success; Needs Improvement; and Fails. However, the agency only provided a definition for the “Success” performance standard; the other three performance levels were not defined.
In the decision, the MSPB judge reversed the employee’s removal because the judge found that the agency never informed the employee which of these performance levels he had to reach during the performance improvement period in order to retain his job. Moreover, the judge found that if the employee had to improve from “Fails” to “Needs Improvement,” the agency failed to even define what “Needs Improvement” meant. Indeed, the MSPB judge stated that “. . . it is impossible to determine whether the appellant’s performance should be rated at the ‘needs improvement’ and ‘fails’ level.” Finally, the judge ruled that the letter placing the employee on the performance improvement period specified no level of performance other than “acceptable,” which was an undefined level of performance.
In addition to ordering that the employee be reinstated, the MSPB judge ordered the agency to pay the employee back pay within 60 days of the date the decision becomes final.
** 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. **
