By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. Wiley@FELTG.com

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