By William Wiley

Back in the early ’80s, we employment law practitioners were working to try to figure out just what the new laws regarding removing unacceptable performers were all about.

One of the unanswered questions from the Act was this: If an agency is confronted with a poor performer, must it use the new 432/PIP procedures to remove him or was it free to use the old 752 “adverse action” procedures that effectively pre-dated the Civil Service Reform Act of 1978 (CSRA)? OPM took a shot in the dark and concluded that 432 procedures must be used and that going forward agencies were precluded from using adverse action procedures for performance problems.

I was a relatively new GS-11 Employee Relations Specialist at the time, working for the Naval Hospital in San Diego. One case I was wrestling with was that of a pediatric nurse who was non-performing in ways that could get patients killed. For example, she was not consistently monitoring intravenous injection sites to make sure the needle stayed in the right place. You don’t have to have much of a medical background to appreciate that if the needle in a baby’s arm gets twisted out of the vein, the IV fluid will go into the baby’s arm tissues, causing swelling and perhaps resulting in loss of the arm or even the patient.

I remember calling the local OPM office for help. Back then (probably around 1981), I thought that OPM must have all the answers because the CSRA had put that agency in charge of advising us lowly HR officials at the various agencies around government. I explained the situation to them and they advised that I had to PIP the nurse and give her another 30 days or so to improve. I asked how many baby arms I should allow to be lost before we found her to be unacceptable during the PIP?

They then advised that I should assign a more qualified nurse to follow her around to make sure that when she made errors, there was someone there who could correct them before any babies died. I went and looked in my Spare Nurse Locker, and you know, there just weren’t any spare nurses in there.

Three things were burned into my brain at that moment:

  1. OPM does not know all the answers.
  2. Legal interpretations that defy common sense are usually wrong.
  3. Agencies absolutely must be able to use adverse action procedures to fire someone who’s past performance is so bad, immediate removal without a PIP is warranted.

Not long after that, the Federal Circuit Court of Appeals and the U.S. Supreme Court agreed with me. Although they did not mention me by name, I am certain that they were thinking of my pediatric nurse when they ruled that yes in-deed-dee, an agency certainly can use adverse action procedures to fire a bad performer. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 475 US 1111 (1986). But there is one caveat: an agency cannot fire someone for poor performance using adverse action procedures if, under the employee’s performance plan, the performance would have been acceptable. In other words, an agency cannot say that 40 widgets per week is the minimum acceptable level of performance for 432 purposes, then order the employee to produce 45 widgets per week, and THEN remove the employee under 752 for “Failure to Perform Duties” or some similar charge label when only 42 widgets are produced.

Common sense to me.

Thirty years later, DVA fired a GS-7 Supervisory Program Specialist using adverse action procedures (no PIP) based on the following charges, all of which smell a lot like poor performance:

  • Failure to Properly Perform Duties
  • Failure to Perform Supervisory Duties
  • Failure to Perform Duties in a Timely Manner

The bottom line to these charges was that the employee was responsible for placing DVA patients waiting for a medical appointment into available appointment slots, a process known as “slotting.” The Deciding Official testified that slotting should be accomplished at a rate of 98 to 100% of the time. Unfortunately for DVA, the employee’s performance standard said that slotting was unacceptable if it fell below 85% efficiency. This mistake, plus some failures of proof caused the judge to set aside the removal and replace it with a demotion from a GS-7 Supervisory Program Specialist to a GS-5 Medical Support Technician.

I think I’m going to start using the term “legacy mistake” for agency procedural errors like this. It’s been a quarter of a century since the court laid down the Lovshin Rule. We’ve been teaching this legal point in FELTG’s fantastic MSPB Law Week program for about 15 years. It’s one thing to make a procedural error in an untested area of law. It’s a substantially different situation when we make a mistake that has been a mistake for 30+ years; a legacy mistake indeed.

So the agency made a mistake in this case. Well, so did the Board. Not necessarily a mistake in law, but a mistake in the reality of the federal workplace. When the Board found removal to be excessive, it replaced it with a demotion to a Medical Support Technician. Help me here; how does the Board know that the agency has work for a Medical Support Technician to do? Maybe all of its Medical Support Technician positions are filled and all the Medical Support Technician work is getting done. Does the Board expect the agency to run a RIF to vacate an existing Medical Support Technician position so that the appellant can be placed into it? Alternatively, does the Board think that the agency should just have the demoted employee sitting around waiting for more Medical Support Technician work to come in to be done? When the Board mitigates a removal to a demotion without evidence that there is lower-graded work to be done, it’s messing with the position management authority of the agency. Yes, if an adverse action penalty is too severe, the Board should be able to mitigate it – but not by interfering with the agency’s decisions as to how to run an efficient workplace. Wiley@FELTG.com

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