Federal Employees Should Take a PIP Seriously
It is important for federal employees to take a PIP very seriously given that there is an extremely high removal rate when the process is initiated. Federal employees often do not realize the serious nature of the PIP process until it is too late. This is why it is crucial that federal employees on PIPs, or those that have just received a poor performance evaluation, to consult with an attorney as soon as possible.
In initiating a PIP, a federal agency must have justification to do so. For instance, the federal employee may receive an unacceptable performance rating before being placed on a PIP. A PIP must allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework.” Zang v. DIS., 26 MSPR 155, 157 (1985).
The Federal Employee Must Be Given a Reasonable Opportunity to Succeed
A PIP is governed by Chapter 43 of the U.S. Code which requires federal agencies to follow certain procedures in initiating performance-based actions. See 5 U.S.C. § 4302; 5 C.F.R. § 432.104. Before initiating an action for unacceptable performance under 5 U.S.C. § 4303, an agency must give the federal employee a “reasonable opportunity to demonstrate acceptable performance.” Towne v. Department of the Air Force, 120 MSPR 239 (MSPB 2013).
Federal statutes, regulations, and case law dealing with the PIP process emphasize the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in meeting their performance goals. As 5 C.F.R. § 432.104 states, an “agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position. . . and [that] the agency shall offer assistance to the employee in improving unacceptable performance.”
The performance action should allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework” (emphasis added). Zang, 26 M.S.P.R. 155 (1985). “The legislative history of the Civil Service Reform Act . . . specifically notes the opportunity to improve performance as an important aspect of a valid performance appraisal system.” Sandland, 23 MSPR at 587.
As part and parcel of this meaningful opportunity to improve an employee should receive the assistance promised by the federal agency. Adorador v. Dep’t of the Air Force, 38 MSPR 461 (1988) (employee prevailing in Merit Systems Protection Board appeal where the agency failed to prove that it provided the assistance promised in the Notice of Unacceptable Performance). In addition, the federal agency must also provide an appropriate level of assistance to the employee during their PIP period. Thompson v. FCA, 51 M.S.P.R. 569, 579 (1991) (MSPB holding that Federal employee did not receive promised supervisory assistance and that supervisors had predetermined the employee’s failure in PIP employee gave the Board reason to reverse the agency’s decision to remove the employee).
In Zang, the Merit Systems Protection Board found that the agency had violated the employee’s Chapter 43 rights and that the employee was denied a “fair and meaningful” opportunity to improve her performance where the employee’s supervisor did not provide guidance on how to improve, and “the counseling session given the appellant by her supervisor were often disparaging in nature.” 26 MSPR at 157. See also Beasley v. Dep’t of the Air Force, 25 MSPR 213, 215 (1984) (“Although the agency claimed that it ‘counseled’ the appellant, this counseling only consisted of the Agency merely reviewing her work product and indicating her errors”).
Potential PIP Outcomes
As discussed earlier, a PIP is often the first step in attempting to remove a federal employee. PIPs are a minimum of 30 days in length with many agencies offering longer periods. In addition, the elements and the PIP itself can be complex and lengthy. Depending on the author, a PIP, without proper agency assistance, can be designed to be very difficult to pass. The ultimate result of the PIP will depend on the employee’s performance during the PIP period. If the employee has been deemed to have an acceptable level of performance, there is no need for the federal agency to take any action except to keep providing feedback and encouragement to the employee. If the employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine the next course of action.
The potential options following a PIP that is not completed successfully can include reassignment, demotion, or removal. If deemed unacceptable performance the employee is most often proposed for removal. Keep in mind that both at the agency and MSPB there are no requirements tor consider the Douglas or mitigating factors under Douglas v. VA, 5 MSPR 208 (1981) in a PIP removal case.
Potential Defenses to PIPs
When facing a negative decision on a PIP there are some potential defenses to consider in filing an appeal at the MSPB:
1. Whether the agency provided meaningful assistance to the Federal employee during the PIP period?;
2. Whether the agency met their procedural requirements to initiate a PIP?;
3. Whether there were medical or other issues that caused poor performance during a PIP?;
4. Whether the Agency designed a PIP that was possible for the employee to pass?;
5. Whether or not the Agency predetermined the outcome of the PIP for the Federal employee involved?;
6. Whether the Agency provided a reasonable opportunity for the Federal Employee to improve? See Deskins v. Dep’t of the Navy, 29 MSPR 276 (1985) (employee was subjected to verbal abuse, insults, and harassment that interfered with his ability to perform on the PIP and was therefore denied reasonable opportunity to demonstrate improved performance); or
7. Whether the Agency can justify its decision to place a federal employee on a PIP in the first place. Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021).
The most important aspect of federal employee PIP process is for the federal employee to realize its serious nature and seek legal advice immediately. This article is intended for only general information. Federal employee performance issues are extremely individual in nature and vary in each case. Our law firm can be reached at www.berrylegal.com for further inquiry or in providing assistance to federal employees.