Striving for 85% Accuracy

By on December 13, 2011 in Court Cases, Current Events with 15 Comments

Is a performance standard reasonable where it requires that a Veterans Affairs rating specialist achieve at least 85 percent accuracy? In Fisher v. Department of Veterans Affairs (C.A.F.C. No. 2011-3046 (nonprecedential), 11/14/11), the appeals court agrees with the arbitrator who ruled that it was a reasonable standard.

Gary Fisher was a GS-12 rating specialist at the VA Service Center in Manchester, New Hampshire. His boss told him in mid 2009 that his work quality had slipped below the 85 percent average accuracy rate required for minimum acceptable performance and he was placed on a performance improvement plan. Fisher was given three months to bring his accuracy rate up to the required 85 percent.

When Fisher failed to meet the minimum accuracy requirements, in late 2009 the agency removed him for performance deficiencies. The union filed a grievance in Fisher’s behalf and eventually the case went before an arbitrator. The arbitrator upheld Fisher’s removal and he took his case to the appeals court.

Fisher did not dispute that he had failed to meet the 85 percent accuracy requirement. Instead he argued that the performance requirement was unreasonable. He maintained that it was virtually impossible for someone on a PIP to attain an average accuracy rate in the few short months he had to do it under the PIP. He argued he would have to far exceed the 85 percent rate in order to bring his cumulative rate up to par. For this reason he argued the standard was per se unreasonable. (Opinion pp. 3-4)

The court did not buy Fisher’s argument, holding that the performance requirement was reasonable. Yes, it is challenging for an employee under a PIP to meet the requirement; however, as the agency pointed out, it was possible for Fisher to do it had he accurately rated 27 of the 30 cases he reviewed during the PIP. (p. 5)

The court gives short shrift to Fisher’s additional argument that he received inadequate guidance from his supervisor during the PIP. According to the record, Fisher was out of the office for most of the PIP period on annual leave, sick leave, or other authorized leave. In one month alone he was only available at work about 25 percent of the time. The supervisor made many attempts to help Fisher, but he “was uncooperative and rebuffed those attempts.” (p. 6)

In short, the court backs the arbitrator and the agency and Mr. Fisher’s removal is now sustained.

Fisher v. Department of Veterans Affairs

© 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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