By William Wiley

Another reader question. And this one is from an attorney at one of those few agencies that is not covered by the unacceptable performance removal provisions of 5 USC Chapter 43. Does a Performance Improvement Plan have any place in that non-432 world?

The issue:

Dear FELTG Super-Brains,

Because we are a government corporation, our agency cannot use Chapter 43 to remove employees for poor performance and rather, must use Chapter 75. Nevertheless, we still place poorly-performing employees on performance improvement plans.

I know that under Chapter 43, if an employee passes a PIP but later fails to maintain their performance in same performance measures from the PIP during the year following the PIP, they can be removed without being put on another PIP. My question is, is there any similar advantage offered to agencies for removals under Chapter 75? Or does the test remain the same no matter what?

And our insightful (or not) FELTG answer:

Very nice to hear from you. As for your question, we don’t have any MSPB cases on point, but the same old Chapter 75 logic applies:

  • First, you have to tell the employee what you expect (i.e., have a rule and tell him the rule). A PIP Initiation letter will do that for you. If at the end of the PIP the employee has failed to meet the expectations you set (MSPB likes to call those expectations “firm benchmarks”), you have a violation of the rule and a basis for a 752 removal.
  • If the employee successfully completes the PIP by getting her performance up to an acceptable level, give the employee a PIP Warning Letter, There’s a sample on p. 230 of the world-famous textbook, UnCivil Servant, deweypub.com.
  • If the employee fails during the PIP or post-PIP and you propose a removal, you’ll have to do a Douglas Analysis to justify the termination. The fact that you’ve previously PIPed him for the element he has failed will go to the factors: isolated or repeated, work record performance, and clarity of notice; perhaps rehabilitation potential. Unfortunately, a PIP failure works against removal when evaluating the Douglas Factor related to “intentional.” One of the beauties of a classic Chapter 43 removal is that intent is irrelevant; not so in a 752 performance removal.

Unfortunately, under Chapter 75, you’ll run into judges who want to evaluate your standard of performance to determine whether in their mind, you have set a level of performance that deserves a removal for failure. In a classic Chapter 43 case, on the other hand, a judge cannot evaluate the wisdom of the critical element. Winlock v. DHS, 2009 MSPB 23, is a good Chapter 75 case to look at regarding this little hurdle, although there DHS did not use a PIP.

Another unfortunately: we’ve seen a new collection of Board members since Whitlock. This Board even in a Chapter 43 performance has stuck its nose into the strength of the agency’s determination as to whether a standard was too tough. In Muff v. Commerce, 2012 MSPB 5, the Board came up with some stupid “genuinely unacceptable performance” approach, although there I think they were put off more by the length of the post-PIP period for determining subsequent unacceptable performance, and not the standard itself. The good news is that only one of the Board members who voted in Muff is still serving, so maybe we can avoid any further inroads into management’s right to set a performance standard.

Too bad you can’t use Chapter 43. It is a dynamite tool for holding people accountable. Tomorrow, I’m drafting a proposed removal for a client who initiated a PIP at the end of February. 30 days and out is a pretty decent way to get people to do their jobs.

Hope this helps. Best of luck. Wiley@FELTG.com.

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