Probation, Performance Improvement Plan and Then Removal

By on May 23, 2007 in Current Events with 1 Comment

A GS-13 manager, removed by the Department of Veterans Affairs for unacceptable performance, was unsuccessful in his bid to win his job back first in his appeal to the Merit Systems Protection Board, and now in his petition to the Federal Circuit Court of Appeals. (Daniel v. Department of Veterans Affairs, C.A.F.C. No. 2006-3291 (nonprecedential), 5/11/07)

Michael Daniel was selected as Chief, Consumer Relations Service, and worked for Kathy Lockhart, Associate Director of Operations for the VA Maryland Healthcare System. Once Daniel completed his probationary period, his supervisor recommended he be retained, but at the same time put him on a 90-day Performance Improvement Plan (PIP) because of certain deficiencies in his performance.

(The HR specialists reading this summary are at this point asking, “Why in the world didn’t Lockhart simply remove Daniel during probation?” Good question. Unfortunately it is neither raised nor addressed in the court’s decision.)

During the 90-day PIP, Lockhart worked closely with Daniel to guide him. When the PIP was about to end, Lockhart believed his performance was still unsatisfactory. But, she extended the PIP out of concern that she had not let him work independently enough, given his grade level and management position. The extension was done to “allow Mr. Daniel to ‘fly on his own.’”  (Opinion p. 2)

The PIP was extended again because Daniel went on extended sick leave. The third time was not the charm, however. A little over a year after Daniel’s original probationary period expired, he was removed for unacceptable performance. (p. 2)

The MSPB administrative judge held a hearing that lasted 4 days. The decision upheld Daniel’s removal since he “failed to meet [the] critical element of resource management in his performance standards” even though he had a “very real opportunity to improve his performance.” (p. 2)

Daniel made two basic arguments to the appeals court. He argued that his removal was wrong because he had acceptably performed every task assigned to him. Alternatively—if in fact he did not perform acceptably—then removal was wrong because “he was not given a reasonable opportunity to demonstrate acceptable performance.” (p. 3)

The court pointed to the following findings of the MSPB judge as ample basis for Daniel’s failure to perform in the resource allocation element of his position: Unsatisfactory completion of updates to position descriptions for people who worked for him; his failure to establish a patient escort service—a job he had received a specific budget amount to do; failure to provide required continuous coverage for an information desk; and his failure to hire a Lead Patient Representative which necessitated others having to fill in for this position in addition to their normal duties.

Daniel’s second argument that he was not given sufficient opportunity to improve his performance did not go far with the appeals court. He apparently leaned heavily on the fact that Lockhart had not been in the office much during the last 2 months of his PIP. As the court noted, “That argument is unpersuasive because, as noted above, the evidence shows that Mr. Daniel did not perform his duties satisfactorily…Ms. Lockhart was available to Mr. Daniel by telephone, email, or, when she was in the office, in person.” (pp. 4-5)

Daniel threw in various other reasons why he felt he was not given sufficient time to improve, but the court dismissed each in turn. As for the argument that Lockhart had it in for him and had prejudged him, the court pointed out, “…the DVA could have removed Mr. Daniel at the end of his probationary period or after the initial term of his PIP. Placing Mr. Daniel on a PIP and later extending it could only work in Mr. Daniel’s favor. Such actions indicate, if anything, that Ms. Lockhart was interested in giving Mr. Daniel a further opportunity to demonstrate acceptable performance.” (p. 6)

In sum, the Board’s decision is supported by substantial evidence, and Mr. Daniel loses.

You have to wonder if Ms. Lockhart ever regretted her decision not to remove Mr. Daniel during probation?

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.