By William Wiley, October 18, 2017

If your performance rating system has five levels, with a Marginal or Minimal (or Partially Achieved Expected results) rating level between Fully Successful and Unacceptable, you absolutely need to read this article.

Many years ago, MSPB started noticing an odd type of performance standard being used to fire poor performers. Some agencies were describing the worst sort of performance possible (e.g., “Never gets anything done on time”) and labeling it Marginal performance. When I would see those standards, I would think to myself, “That’s the job I want to have!” because I could never be fired for not doing anything. Marginally performing civil servants get to keep their jobs until retirement, although they would retire at Step One of their pay grade without receiving any within-grade step increases during their career. Still, not a bad retirement income.

For reasons I never quite understood, MSPB began referring to this kind of performance standard as a “backwards” standard. The Board reasoned that by stating the negative accomplishment as the Marginal level of performance, the agency was taking a “backwards” approach; that the Marginal level should state what the employee needs to do, not what he needs not to do. I always thought it made more sense to analyze these things as the agency writing an Unacceptable level description, but misnaming it the Marginal level. But who am I to tell the Board what to do?

This is an absolutely critical concept for the practitioner to grasp. Use a backwards performance standard to fire an employee and you will get your removal action overturned muy quick-o. Where a “less than fully successful” rating in a critical element allows a summary rating of “Marginal,” an agency fatally errs by not advising an appellant of what is required to reach the marginal level and thereby avoid a performance-based action. See Van Prichard v. DoD, 117 MSPR 88 (2011), aff’d 484 F. App’x 489 (Fed. Cir. 2012). A performance standard written at the minimally-satisfactory level that describes unacceptable performance in terms of what an employee should not do, but fails to inform her of what is necessary to obtain acceptable performance, is an invalid “backwards” standard. See, generally, Eibel v. Navy, 857 F.2d 1439 (Fed. Cir. 1988).

A Marginal performance standard is an invalid backwards standard because, although it is written at the “minimally successful” level, it fails to inform the appellant of what is necessary to obtain an acceptable level of performance, and instead describes what he should not do. Romero v. EEOC, 55 MSPR 527, 534 n. 5 (1992), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table). Because the Marginal standard does not define the minimal performance necessary for the appellant to remain employed in his position, the agency fails to distinguish between Marginal and Unacceptable performance as a practical matter. See Burroughs v. HHS, 49 MSPR 644 (1991).

For example, in Wilson v. HHS, 770 F.2d 1048 (Fed. Cir. 1985), the Court found that the following Marginal standard was almost a parody of a proper standard:

Coordinates controls, and directs activities of subordinate staff to insure adequate service to the public by appropriate management principles. Assignments and instructions to staff are hastily made and sometimes misunderstood. Direction of work activities is occasionally effective in achieving objectives.

Wilson, 770 F.2d at 1053.

Here’s another one:

Marginally acceptable; needs improvement; inconsistently meets Fully Successful performance requirements. The employee has difficulties in meeting expectations. Actions taken by the employee are sometimes inappropriate or marginally effective. Organizational goals and objectives are met only as a result of close supervision. This is the minimum level of acceptable performance for retention on the job. Improvement is necessary. Examples include:

  • Work assignments occasionally require major revisions or often require minor revisions;
  • Inconsistently applies technical knowledge to work assignments;
  • Employee shows a lack of adherence to required procedures, instructions, and/or formats on work assignments;
  • Employee is reluctant to adapt to changes in priorities, procedures or program direction which may contribute to the negative impact on program performance, productivity, morale, organizational effectiveness and/or customer satisfaction needs improvement.

Sommer v. HHS, MSPB No. SF-0432-16-0063-I-1 (February 22, 2016) (ID)

A number of agencies have modified their appraisal systems to do away with a Marginal rating, in part because of this problem. If you are in a policy position within your agency, you might well want to follow that example. Hey, who wants to go to The Hill and tell their oversight committee how proud the agency is that all of its employees are at least Marginal civil servants?

If you cannot change things from a policy position, be sure to watch out for backwards standards whenever you’re putting together a performance case. A backwards standard is void ab initio and cannot be “fleshed out” or otherwise explained in the PIP initiation letter. If you find one, you need to start all over, fix it with a rewritten standard, then give the employee a warm-up period of a few weeks to get used to it before you initiate a PIP.

If you need more of this mundane-but-critical insight into performance accountability, consider signing up for the next FELTG MSPB Law Week open-enrollment seminar in Washington, DC March 12-16 or Denver, CO June 4-8 (assuming, of course, that we still have an MSPB by then). But don’t do that if you work for Navy, because we’ll be coming to you with a full week of MSPB Law Week in late January, in lovely Silverdale, Washington. What’s that you say? Why don’t we come to YOUR agency with all this good stuff? Well, we’d be just delighted and honored to do so. Give us a call to make your 2018 the best year ever for winning MSPB appeals and holding your employees accountable for performance and conduct: 844-at-FELTG. Wiley@FELTG.com

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