A 30-year Navy HR specialist could not persuade the appeals court to overturn his removal for unacceptable performance. (Dobson v. Navy, C.A.F.C. No. 2008-3127 (nonprecedential), 7/21/08) The facts are taken from the court’s opinion.
Dobson worked at the Navy Military Sealift Command in Virginia Beach, Virginia. He ran into performance issues and was placed under a PIP (Performance Improvement Plan). Typical of such plans, Dobson’s PIP spelled out specifics on his performance problems, how he could improve, and how he would be watched during the 60-day evaluation period to follow. At the end of the 60 days, the agency removed Dobson for several violations of the following particular critical element of his performance plan:
“Accepts work assignments, properly follows instructions, uses technical knowledge, applies skills and plans, organizes and works effectively and efficiently to produce products and/or services of good quality in a timely and responsive manner. Anticipates and analyzes problems and determines solutions that include improvement of work processes. Promotes teamwork: works well with others and takes responsibility as either a team leader or team member as required.” (Opinion p. 2)
Dobson appealed to the Merit Systems Protection Board, a hearing was held, and the Board upheld his removal. He took his case to the Federal Circuit Court of Appeals but fared no better there. The court has sustained Dobson’s removal. (pp. 1-2)
Dobson unsuccessfully raised several different attacks on the performance standard that tripped him up as well as the PIP process. Among other things he argued that the specific performance standard was invalid because it was an absolute standard. The court brushes this argument aside, finding that the applicable law does not prohibit use of absolute standards, and pointing out that Dobson did not present any specifics as to why the level of required performance could not be obtained. (p. 3)
As to his argument that the standard was too vague, the court agreed with the Board’s conclusion that the performance standard was valid. (p. 3)
The court also summarily brushed aside Dobson’s newly-raised argument that the Navy had failed to prove that a human resources specialist had approved his performance plan, since there was no legal requirement that the agency do so and Dobson was impermissibly raising this argument for the first time before the court. (pp. 6-7)
Dobson also argued that his 30-year successful employment history and a recent mid term evaluation indicating “all was well” should have been considered by the Board to overturn his removal.
This is how the court responded: “Although Mr. Dobson may have performed at a satisfactory level during most of his career, the Navy was concerned that his performance had deteriorated. Under the rules applicable to performance improvement plans, only Mr. Dobson’s performance during the 60-day evaluation period was relevant to the Board’s analysis and decision.” (p. 9)
One final issue of note is Dobson’s argument that the Board should have considered penalties lesser than removal. The court finds that in performance based removal appeals, the Board has no authority to mitigate the agency’s penalty. (p. 10)
At the end of the day, the court has sustained the Board refusal to overturn Dobson’s removal. (p. 10)