The MSPB has backed protections for federal employees in disciplinary actions based on alleged poor performance, adopting the principles of a federal court ruling issued about a year before the MSPB was recently able to again begin issuing decisions.
At issue are the required “performance improvement plans” to give an employee a chance to improve before being disciplined on charges of poor performance. In a March 2021 decision, the Federal Circuit appeals court stressed that the law allows removals only of employees “who continue to have unacceptable performance” after such a period.
The court interpreted that to mean that the agency must prove that the employee’s performance was that poor previously and that it continued that way through the improvement period. Otherwise an agency could impose improvement plans as a form of retaliation and then fire employees on grounds that they did not improve during that period, it said.
In a separate case involving the same issue, the MSPB in 22-MSPB-11 noted that it traditionally had held that an agency did not have to prove that an employee was performing unacceptably before being put on a performance improvement plan and that it had not examined previous performance while considering an employee’s appeal.
It said that in light of the court ruling, an agency must show that the employee’s “performance during the appraisal period was unacceptable in one or more critical elements” in addition to prior requirements that the standards were valid and approved, and that the employee’s performance remained unacceptable after having been given the chance to improve and warned of the potential consequences for not improving.
That change now “applies to all pending cases, regardless of when the events at issue took place,” the MSPB said in an indication that a number of other cases that had built up there during the five years the MSPB lacked a quorum will be sent back to hearing officers for reconsideration under the new standard.