Where Did We Put Those Inmates?

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(nonprecedential), 6/28/11), that is exactly what happened.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.

Novitsky11-3023

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

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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.

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