The Court of Appeals for the Federal Circuit has issued two recent decisions in separate cases broadening employee protections in disciplinary cases.
One case, No. 2019-2345, involved the “performance improvement plan” required before an employee can be disciplined on charges of poor performance. After putting an employee on such a plan, the agency ultimately removed him on those grounds, a decision the MSPB upheld even though the employee contended that his performance did not merit being put in that status and that the agency was retaliating against him for missing time from work for military service.
However, the court stressed that the law allows removals only of employees “who continue to have unacceptable performance” after such a plan, which it said means 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. The court sent the case back to the MSPB with instructions to apply that standard and also to consider whether the employee was retaliated against for military service, saying the two issues were inter-related.
The other case, No. 2019-2032, involved the reduced protections for VA employees under a 2017 law applying to only that department. That law among other things said that the MSPB may review only whether an agency decision is supported by substantial evidence and if it is, the merit board cannot lessen the penalty the VA chose.
The court cited a ruling it issued last year—in a case involving alleged misconduct saying that the MSPB’s authority under that law to review an agency’s decision includes review of not only the facts but also the decision to impose a certain penalty based on those facts. The new ruling effectively extends that precedent to cover cases involving performance.
The court further extended to performance cases another precedent it set in that prior ruling, that the VA cannot invoke its enhanced disciplinary powers under the 2017 law for events that occurred before its enactment.