Thursday, January 26, 2012

MSPB Affirms Administrative Judge's Determination that Agency Failed to Prove Appellant's Performance Was Unacceptable


In a recent decision, Muff v. Dept. of Commerce, MSPB Docket No. DC-0432-11-0095-I-1, the Merit Systems Protection Board (MSPB) found that the agency failed to prove by substantial evidence that the appellant’s performance was unacceptable. The appellant was a GS-4 field representative for the Department of Commerce who was removed under 5 USC § 4303 (Chapter 43) for failure to perform in a critical element of her position. The appellant had successfully completed a Performance Improvement Plan (PIP) for a critical element from July to October of 2009. The agency later based its decision to remove the Appellant upon her performance of that same critical element in May 2010.

The appellant appealed her removal to the MSPB where the Administrative Judge found that while the agency did establish that the appellant’s performance of the critical element was unacceptable for May 2010, the appellant’s performance for only one month was an insufficient basis upon which to remove the appellant under Chapter 43. The Administrative Judge also found overwhelming evidence in the record showed that the appellant’s cumulative performance for the year prior to her removal was at the acceptable level.

Under Chapter 43, an agency may remove an employee for unacceptable performance after a successful completion of a PIP if the instances of unacceptable performance are in the same critical element(s) as those involved in the PIP and the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the PIP. In Brown v. Veterans Administration, 44 MSPR 635, (1990), the MSPB held that if the Administrative Judge determines that the appellant performance the critical element acceptably during the PIP, s/he should then determine whether the appellant continued to acceptably perform. If the Administrative Judge finds that the appellant had performance failures, s/he is then to determine whether those failures, in light of the appellant’s performance during the year prior to the notice of proposed removal, amounted to unacceptable performance. Id., at 644. The Board reiterated its previous statement in Sullivan v. Dept. of the Navy, 44 MSPR 646, 656 (1990), that rather than imposing a blanket rule, the MSPB will have to determine on a case-by-case basis whether an agency’s evidence of post-PIP performance constitutes substantial evidence of truly unacceptable performance.
For federal employees who have successfully completed a PIP, this decision provides a good reminder that subsequent poor performance can be considered by the agency in a later decision to remove the employee. However, this decision also provides guidance to agencies regarding the very careful consideration necessary when proposing the termination of a federal employee under Chapter 43.

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