By William Wiley, September 19, 2018

Here at FELTG, we invite seminar participants to address follow-up questions to us in case we were unclear in class, or simply if the old memory isn’t working too well on a particular day. The following is a question we received recently from an attendee in our famous and fabulous MSPB Law Week seminar. Check out our website for the next offering of that program in your neighborhood:

The question:

Greetings!  Hope all is well.

I have a hypothetical question related to the training we recently had regarding firing employees who cannot perform acceptably in their positions.

During your training, you walked us through the benefit of not marking an employee as ‘Unacceptable’ and simply proceeding with the PIP.  Can you please explain that rationale again?

Thank you.

Our tried and true FELTG-answer:

No probelmo. Here’s the logic tree:

1 – If you PIP an employee, he cannot challenge your judgment that his performance is unacceptable. That determination and the PIP itself are outside the grievance and EEO complaint process (with the limited exception of reprisal and hostile environment complaints). He can challenge the result of the PIP if there is a failure to perform, but he cannot challenge the initiation of the evaluation period itself.

2 – If the employee fails the PIP, you fire him. He can then appeal to an MSPB judge who will most likely affirm the removal. The MSPB appeal takes three to four months for the judge to adjudicate the removal appeal, then we’re essentially done. There is a possible higher-level review by the Board and even by the courts, but the judge’s decision is usually upheld all the way through the appellate process.

3 – HOWEVER, if you give the employee an Unacceptable performance rating at the same time you PIP him, he can separately challenge that rating. He can file an EEO complaint, have your judgment that the performance was unacceptable investigated, get a Report of Investigation, file a formal complaint with EEOC, and eventually get a hearing before an EEOC judge and a decision as to whether the Unacceptable rating was justified. That process these days takes about four years.

If you give a rating commensurate with initiating the PIP, the eventual removal arguably could be set aside years later by some crazy EEOC judge ruling that the performance prior to the PIP was not unacceptable after all.

Trust me. You do not want this ugly mess on your hands. Just don’t rate him. Initiate the PIP and it’s a much more secure action. As we always teach, do no more than required by law when you are dealing with a problem employee. The more you do, the more you will have to be prepared to defend. And the more you have to defend, the greater is the chance that somebody somewhere in the review process will find fault with something you did.

If your CBA or agency’s stupid policy requires that a summary rating of record be given at the same time you initiate a performance evaluation period, then you are stuck. However, that’s hardly ever the case. Just initiate the PIP, wait 30 days, then propose to fire the employee if he does not perform to standard in all the elements of his performance.

This is sooooo easy if you know what you’re doing.

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