One would assume that the Department of Justice should be able effectively to deal with and remove an unsatisfactory performer and have the action sustained on appeal. In this recent case (Novitsky v. Department of Justice, C.A.F.C. No. 2011-3023 (nonprecedential), 6/28/11), that is exactly what happened.
Novitsky was hired on in April 2007 as a criminal clerk in the Marshal’s Service in Denver, Colorado. She was trained in the use of the Prisoner Tracking System (PTS)—twice—one 2-day course when she was first hired, and four months later after she showed she was having difficulty doing her job without help from others. (p.2)
Novitsky got a “successful” rating some seven months after she was hired, but a couple of months after that and before she had completed a year on the job she was put under a warning notice of unacceptable performance largely involving her inability to accurately enter data into the PTS system. No less than 12 errors entering PTS system data were cited. Her improvement plan said she could make no more than 3 errors during the next 90-day period. The usual weekly performance improvement meetings were held and Novitsky was given the chance, but declined, to get even more training in the PTS system as well as in organizational skills and time management. (pp. 2-3)
A few months later the agency warned Novitsky again in writing that she had made 15 errors since being warned of her unsatisfactory performance. They gave her 60 more days to improve and required that she make no more than 2 errors during that 60-day period. (p. 3)
In September 2008, the agency proposed to fire Novitsky, citing 16 errors, to include one inmate being held over 61 days without a hearing before a judge, transferring another inmate for no reason, incorrectly listing several inmates as having been released, and in one case causing a $31,900 funding shortage for a local jail to house prisoners. (pp. 3-4) Eventually Novitsky was removed and she ended up in arbitration to challenge the action aided by her union. (p. 4)
The arbitrator sustained the removal, concluding that the agency had proved its case. Novitsky took her case to the appeals court. In a recent decision the court has sustained the agency and the arbitrator. (p. 7)
The facts of the case do not indicate whether Novitsky was on probation when first hired in April 2007. If she was, one has to wonder why the agency didn’t remove her during probation given that they invoked the performance improvement process in February 2008.
In any event, Novitsky remains off the roles in light of this appeals court decision.
