Repeating the Same Mistakes: Does HR Understand Performance Appraisal?

By on February 29, 2012 in Current Events with 40 Comments

The Merit Systems Protection Board (MSPB) recently overturned the removal of a Department of Defense (DoD) employee for unacceptable performance.  The reason was all too familiar to those of us who have worked in the area of Federal performance evaluations over the past 20-30 years.  The agency, the Defense Security Service (DSS), failed to adequately inform its employee, Larry Van Prichard, of the difference between unacceptable and marginal performance as it pursued his eventual removal.

In an earlier FedSmith column, I was very critical of another performance case that resulted in a reversal by the MSPB due to a technicality. There, the issue dissected was Office of Personnel Management (OPM) approval of an agency’s appraisal system. Here is another case where a procedural issue trumped that of the employee’s performance.  In Van Prichard v. Department of Defense, however, I’m much less critical of the Board whose opinion seems thorough and well-reasoned.

Oops, what I meant to say was…

From the Board’s decision, it appears as if DSS put Mr. Van Prichard on a performance improvement plan (PIP) due to genuine concerns about his competence to do the job he occupies. The agency’s undoing can be traced back to the beginning of their process. Mr. Van Prichard received a “Notification of Unacceptable Performance and Opportunity to Improve” which specified his failings and what improvements were needed for him to reach the Fully Successful level of performance.…and there’s where they made (and compounded) their error.

Like so many Federal agencies, DSS has a five-level appraisal system.  In this case, the bottom two levels are Marginal and Unacceptable.  In the context of school, if unacceptable performance is considered failing, then marginal performance (a “D”) is passing. If appellant had been told what it took to reach the safe haven of Marginal rather than Fully Successful, it appears as if DSS would have prevailed in this case.

When the Merit Board never gets to the merits

Does this case serve as an example of bad advice from human resources and their legal counsel, management incompetence, or system design failure?  Perhaps the answer is all three. My concern is primarily focused on the repeated failing of Federal agency appraisal systems to achieve clarity. I don’t root for one side or the other in such matters. My concern is that such cases are decided on their merits, rather than procedural issues, as is the case here.

Over the 30+ years since I began my career in Federal personnel, agencies have stumbled over the notion of “minimal” or “marginal” performance time and again. In case after case, an absent or poorly written marginal standard has repeatedly invalidated hundreds of supervisory, legal, and HR work hours devoted to proving a Fed to be an unacceptable performer. When people keep tripping over a crack in the sidewalk, it’s time to acknowledge that the sidewalk may be more at fault than the pedestrians.

It’s the same old song

Eliminating this “D” level of performance was addressed in an article I posted to this site years ago titled Unmasking the Marginal Employee. Fellow FedSmith contributor Steve Oppermann also addressed the difficulties attendant to the minimal performance level in his piece titled When Mediocre is Good Enough. We’re still waiting on OPM and most Chief Human Capital Officers to catch up with our simple logic. I can’t imagine the press, politicians or public objecting to DoD abandoning the notion that demonstrating marginal or minimally acceptable performance can save a Fed’s job.

The problem that DSS encountered in this case also rested in their definition of minimal performance…or the lack thereof. While it may be subpar, it’s not failing. So how does one write standards to describe marginal performance?  Over the course of many years (and many MSPB and court decisions), we in HR should have learned that written minimal/marginal performance standards can be interpreted as “backwards” and invalidate hundreds of hours invested in a performance case.

Back to the backwards standards

Invalid minimally acceptable standards are the result of attempts to describe how bad one has to be to earn a minimally acceptable rating. Below is an example from the Departments of Interior’s “Benchmark Standards” describing “Minimally Successful” performance?

The employee’s performance shows serious deficiencies that requires [sic] correction. The employee’s work frequently needs revision or adjustments to meet a minimally successful level. All assignments are completed, but often require assistance from supervisor and/or peers. Organizational goals and objectives are met only as a result of close supervision. On one or more occasions, important work requires unusually close supervision to meet organizational goals or needs so much revision that deadlines were missed or imperiled.

Employee shows a lack of awareness of policy implications or assignments; inappropriate or incomplete use of programs or services; circumvention of established procedures, resulting in unnecessary expenditure of time or money; reluctance to accept responsibility; disorganization in carrying out assignments; incomplete understanding of one or more important areas of the field of work; unreliable methods for completing assignments; lack of clarity in writing and speaking; and/or failure to promote team spirit.

If that leads a reader to consider the lowest performing Federal coworker they have ever fantasized, problems are sure to result. This was Interior’s Minimally Successful standard. In the Bureau of Indian Affairs, National Park Service, Bureau of Land Management, or Fish and Wildlife Service, you’re coworker had to be worse than this to be put on a Performance Improvement Plan (PIP) and removed.  It’s backwards” – a term used by the US Court of Appeals way back in 1988 (Eibel v. Navy, 857 F.2d 1439).

What’s worse than “worse?”

Interior recently abandoned their benchmark for Minimally Successful performance without a substitution. That puts them in the same boat as the Defense Security Services in this recent MSPB case – having an unwritten minimal performance standard. In Van Prichard, the MSPB noted that DSS had only the most oblique reference to marginal performance in its performance appraisal directive. It was found in the “Definitions” section. The pertinent part reads:

“…less than Fully Successful and supervisory guidance and assistance are more than normally required. To be rated Marginal, any of the Critical Elements are rated ‘Marginal’ and no elements are rated ‘Unacceptable.’”

The only thing clear from this “definition” is that Marginal is less than Fully Successful, and marginal employees require more supervision. Technically, this is an “open-ended” standard, which is inappropriate to have at the “D” level.  HR specialists should know this and be on the lookout for transgressions. In this case, they (or some consultant) probably wrote it.

The definition/standard doesn’t define how much of this guidance and assistance tilts the scales to render the offender unacceptable, or an “F”.  If two hours/day of guidance is more than normal, then so is six hours/day.  It’s analogous to telling a student that a “D” is a passing grade representing an average grade below 70%.  Really?  How about 53%… or 27%?  An open-ended marginal standard (having an upper, but no lower limit) is commonly toxic when attempting to prove unacceptable performance.

The consternation of extrapolation

Compounding their problems, the Defense Security Service only required that the Fully Successful performance be defined in writing. This is a common feature of many four and five-level appraisal programs. If the only performance standard in writing is Fully Successful, however, it is impossible to distinguish between marginal and unacceptable. By analogy, if all you know is that a “C” ranges from 70 to 79%, what is an “A”… or an “F?”

This conundrum has resulted in judicial reversals over the course of 3 decades. DSS can now be added to a long list of managers and HR specialists whose cases failed over such a basic issue. Before the government fires someone for unacceptable performance, that employee should be given a clear picture of the difference between passing and failing. In the early 1980s, we were told by OPM that “extrapolating two levels” (up or down) renders an appraisal invalid. Decades later, confusion is still out there. DSS is not alone.

Forests and trees

For evaluations to be more than just a “necessary evil,” the Federal HR community needs to consider where and how they contribute or save real dollars. From where I sit, it seems we have lost sight of both the fundamental purpose and basic design of our performance appraisal system.

The Purpose: To enhance and improve mission accomplishment by motivating individual employees to perform more effectively and efficiently, and removing those who cannot be motivated to succeed.

The Design: Critical elements are what we rate.  Performance standards are the yardsticks by which elements are rated.

At a time when lots consultants and human capitalists want to tie salary increases to appraisals (as if there were any money available for salary increases!), we continue to see cases where managers still cannot distinguish between passing and failing. Differentiating among good, better, and best employees is even more of a crap shoot. Various agency appraisal directives call for critical and non-critical elements, mandatory elements, sub-elements, generic performance standards, unwritten standards, GPRA tie-ins, and burdensome justifications if one tries to rate an employee toward the top of the scale.  Complications lead to confusion, which leads to pre-determined distributions, favoritism, and other non-merit practices – all of which tells us that something’s broken and HR doesn’t seem to know how it should be fixed.

Ideas for avoiding such problems while focusing on the purpose of performance appraisals will be examined in a follow-on piece to be posted soon. For now, Mr. Prichard is back to work – hopefully demonstrating his competence to do the job. Whether the Department of Defense will eliminate the minimal or marginal performance level that exists in the evaluation systems for many of their component agencies remains to be seen.

I’m not holding my breath.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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  1. nancy_pooley says:

    I don’t think we should have a system that allows employees with less then fully successful performance to remain employed period.  How does this look to the tax payers if we tolerate marginally acceptable performance.  That is just as bad as unacceptable.  We all knew it was a problem years ago when most agencies went to 2 levels.  While I don’t think that was the total answer. a 4 or 3 level system would be better.  I like the 4 level system because it allows supervisors to recognize employees who perform exceptionally but do not quite “walk on water”. 

     

  2. Retired Fed says:

    I realized that after 11 years in the job I was no better off than I was when I first started. The appraisal system in my former agency is geared for high producers and those who never make waves. After 30+ years in the agency I started to speak my mind about the the things that bothered me. These were usually things that could be changed if management actually cared. After 40 years I realized that I would never see another promotion and that the “young blood” were the ones who would come in and see large promotions after 3 years. The current appraisal system needs to be fair for all employees. I have never known someone receive a fair appraisal because they try to do their best. Why are the outstanding appraisals always based on inflated numbers and given only to “team Players”?

    • Chunt says:

      It sounds to me like you may have just identified your problem.  If you are “no better off” after 11 years in the job, it is your own fault.  I would imagine that you are actually FAR better off than 11 years ago, yet your conception of “better off” may be tinged a bit.

      What you have to remember is that there is a certain way to “speak your mind”.  Were you one of the employees that is always first to bring up issues but never has any answers or plan to correct these issues??

      The appraisal system is not designed to reward those who “do their best”.  It is really irrelevent whether they are trying to do their best or not.  Appraisals are not based on “trying hard”.  They are based on results and proven superior performance.

      • guest says:

        You must be a “newbie” since you really can’t fathom his point. Thirty, forty years ago govt workers actually WORKED. Sure there are still some who do but there are plenty who DON’T either. Nowadays anything goes, you work if you want and if you don’t just run to the unions.. they’ll bail you out. Nobody has the balls anymore to make people responsible. It’s not what it used to be and it never will be. Just a sign of the times like everything else.

  3. Jason M Brown says:

    This is an intriguing article but I am not sure I agree. While getting rid of the “Minimally” rating would help get rid of poor/lazy performers, it would cheapen the “Fully” rating. I believe supervisors would end up being forced to reevaluate minimal performers and “Fully” instead of “Unacceptable”. I am more in favor of de-unionizing to fix the problem.

  4. lazycs says:

    Maybe if the HR folks would focus on their jobs rather than attending every meeting they can that doesn’t concern them this wouldn’t happen

  5. Herbert Maxwell says:

    I recently retired from DSS where I was thought to be very successful by several acting managers, co-workers and the CEO’s, Presidents, staff and FSO’s whom I inspected.  Our manager retired and a new manager was brought in.  It was apparent the new manager had an agenda which was to aggravate the  existing staff to get the staff to quit, retire or somehow go away.  It was obvious to all staff, the new manager’sprimary target was me.  I was given a review rating of 1 based on false statments and false criteria. I rebutted to my manager’s manager by providing data extracted from DSS database.  My review rating  was changed to a 4.3 from 1; however, I had already made my decision to retire at the moment I was eligible due to the draconian measures being administered by various leaders. 

  6. woolley says:

    Maybe we should be looking at the Supervisors that are reprising against an employee as to why these regulations are in place

    • lazycs says:

      CS win less than 2% of the MSPB cases so they are phoney to start with

      • The Master says:

         That’s not true. That number (which is years old) only refers to cases decided before a judge for whistle-blowers facing retaliation. That’s not the total for all cases. 

    • Exfed says:

      It is obvious the system is broke. It’s all about survival of the fittest. And the definition of fittest is in the person looking. I believe every supervisor should be evaluated by their employees and let the ball start rollin….. I guarantee the rolls would be trimmed and and piss ass management reduced. Now that’s a NOVEL idea but it will never happen. Poop always runs downhill and it will never change.  

  7. ER/LR Specialist says:

    I’m for making performance assessment as easy as possible since there is no perfect system. We got rid of the MS level in 2009. We went to a 4-tier system–0, E, FS and U–with standards written at the E and FS levels. We also added optional generic elements and standards for Leadership, Workforce Management, Project Management, COTR, Teamwork, Technical Performance, Communication and Customer Service. Many offices have been using the generics, some in conjunction with job specific elements they have created while others have decided not to use them. While we have had a few performance cases, they haven’t ended in removals that were appealed to the Board. Due to the use of generics, we spend extra time on the PIP process. So far, so good.

  8. Lbartman55 says:

    I have always felt using a “marginal” level was a mistake.  Who wants someone who is doing a job marginally?  If somebody is not “satisfactory” (or “fully successful”), you should start the performance improvement plan!  Trying to make the fine distinctions about performance required to use a five-level  system requires standards refinements that are extremely difficult to achieve, in most instances.  Human performance is not something you can typically measure with an instrument – unless it’s how fast somebody can run or how high they can jump.  You can measure a salesman’s sales easily.  But performance in most government jobs is difficult to measure in a reliable, objective way.  So the key thing is to establish a minimum acceptable level and get rid of those who can’t meet it.  These would be the 5% at the low end of a normal population.  It gets even messier when you try to decide the breaking point between those that are performing their jobs within the broad range of acceptable performance.  I still believe the better plan there is to reward teams for organizational achievements and to occasionally recognize individuals for truly extraordinary achievements.  

  9. Guest says:

    I can speak only for myself and those I work directly with, but we *hate* the ability for lazy/ineffective workers to avoid being fired.  I fully appreciate the need for a system that protects employees from retaliation stemming from properly doing their jobs, for example, refusing to sign off of delivery of a system from a contractor when it isn’t fit for purpose. 

    But the continued employment of people who have no right to a single cent of taxpayer money is revolting.  These people sap morale, do more damage than good, suck up management time, and use funds that could be put to better use (such as back in the taxpayers’ pockets).  These people’s continued employment is the single strongest argument against unions, in my opinions.

    • RZW says:

      Unions are a relatively minor part of the reason that it is so difficult to fire public employees. It has a lot more to due with the fact that public employees have a constitutionally-protected property interest in their jobs and cannot be deprived of that interest without due process, along with institutional problems that are inherent in any bureaucracy.

      Case in point, the MSPB mostly hears adverse action appeals from unrepresented employees.

      • lazycs says:

        yet they win less than 2% of the cases. By implementing loser pays would cut the number down to 1/2 dozen a year

        • The Master says:

            That’s not true. That number (which is years old) only refers to cases
          decided before a judge for whistle-blowers facing retaliation. That’s
          not the total for all cases. 

          • lazycs says:

            Have you ever read anything or do you just post to get a reaction. the number for MSBP and EEO are published EVER YEAR and its the number of cases heard and those resolved in the plaintiff’s favor. You really are over your head or a union thug

          • The Master says:

            I obviously do more research than you. As I stated, that number, 1.7%, is only in regards to cases heard before a judge. Not all cases are heard before a judge. In it’s own Report, the MSPB gives the real numbers. Use of alternative dispute resolution decides the majority of cases, not a judge. Since I am a supervisor, I am at odds with Union. It’s also interesting that your rant that so few cases favor employees contradicts your constant rants about no accountability.

          • lazycs says:

            Finally you did some research on your own, see how easy it was!!! Don’t stop now you can do it!!!.
            No it doesn’t dispute my rants it just goes to show the depths that the taxpayers have to go thru to get rid of a CS. That’s why loser pays is the best solution. Its also shows how inept the HR folks truly are.
            the best thing that has happened in the past 3 years are Vets taking HR to task for non selection and not only are they winning but punitive as well. Next up HR should be held personally liable

          • The Master says:

            Well, one of us has to do research. And you have obviously never done anything. Your reading comprehension is pathetic. 

    • Justicegirl says:

      Federal unions have absolutely nothing to do with the difficulty (if there is one) of an agency in separating marginal employees.  In fact, an employee is not efen represented by a union before MSPB. Any representatitive of an employee before MSPB is considered a “personal” representative.  Also you should re-read your first sentance because it doesn’t make sense.

      • Guest says:

        My main point was that unions are instrumental in negotiating (directly and via lobbying)  the labor agreements that make it so hard to fire employees that 90% of fair-minded persons agree should be removed.

    • Gman says:

      ALL the comments following this article support the conclusion that Government is inefficient by nature and almost never achieves the program’s stated goals and often even makes things worse. Whether you are a “good” employee or a “bad” employee is pointless.  The only solution is to make Government maybe 5% of of its current size and fire everybody.  I spent 35+ years in government and that only supports my conclusion.  They should have fired me long ago and I would have probably got a real job and be better off now.  Government efficiency in all your minds is an illusion!

  10. DoD Personnel Officer says:

    There must be two kinds of 5-tier rating systems.  Ours is 5-tier as well, but only for the summary rating.  Individual performance elements are rated on a 3-tier system as Met, Not Met, or Exceeded.  There’s no marginal rating on an element.  If somebody gets a Not Met on a critical element, they receive an Unacceptable overall rating and a PIP.  If somebody gets a Not Met on a non-critical element, they receive a Minimally Successful overall rating but no PIP (also no WGI).  To get an Exceptional rating, the employee has to receive Exceeded ratings on all of their performance elements; to get a Highly Successful rating, the employee has to receive Exceeded ratings on more than half of their critical elements.  Fully Successful is all Mets or Mets/Exceeds on less than half of the critical elements.

    • Robbie Kunreuther says:

      Several agencies have this construct.  You rate each “element” at one of three levels and then translate those ratings to a five-level outcome.  I’ve never understood it, but the five-tiered outcome still has a marginal/minimal level.  Because of this, you are probably required to have at least one “non-critical” element — just because you have a “D” in the final rating scheme.  Nutty to me.  Eliminate the minimal rating level and you will eliminate the need for non-critical elements and some silliness in the bargain.

      • DoD Personnel Officer says:

        You’re right that we have to have at least one non-critical performance element, but just imagine what you can do with it.  It’s not just a mechanism to rate someone at Level 2 (we actually have very few of those) but it can be used quite effectively to help stem rating inflation.  If you have to exceed all elements, including that non-critical one, to get the highest rating, then suddenly that non-critical element really means something.  I use it for a general office administration element to incentivize people to do the things they might otherwise blow off:  timesheets turned in on time and correct, travel vouchers filed in DTS within 5-days of return, attend commander’s calls and special emphasis program events, complete mandatory training by the suspense dates, etc.

        • discouraged fed says:

          It’s too bad the DoD Personnel Officer doesn’t understand the difference between performance and conduct.  HR needs to wake up and realize they are part of the problem.   Conduct related issues such as time sheets, mandatory training, travel vouchers, commanders calls, etc are conduct issues NOT PERFORMANCE!!!!  Regulations and policy are created to define employee conduct in these areas.  You don’t need to put in an employees performance management plan “you must follow the regs”.  If they don’t it is encumbant upon the supervisor to discipline.  Let’s get back to reality and start doing our jobs the way you are supposed to!!!! 

  11. lazycs says:

    Look 99% of all CS are rated excellent, why ?? Because its easier and since they have jobs for life and have 0 accountability its contrary to the terms of their hiring

    • RZW says:

      And did you know that 85% of all statistics are made up on the spot?

      • Exfed says:

        One thing not mentioned folks… How about supervisors who do not know what their employees do?? In my agency we had to write our own performance review!!! And unions………..pssssssstttttttt They wouldn’t even waste their time unless you were a member. If employees were properly reviewed, I really think any intelligent person would know that after 20+ years of service and seeing maybe, and that’s a big MAYBE, 6 people fired, the system does not accurately reflect the truth. However I will also admit that my last agency was the WORST I have ever seen and management was so incompetent and uninformed that employees had zero respect for most of them.

    • The Master says:

      Any marks above fully successful require written documentation of superior performance. So, you are wrong again. And as for accountability, tell that to one of the people I fired for poor performance. They will love to hear it.

      • Bill T. says:

        Lazy routinely ignores evidence contrary to their prejudices. It’s worth getting it out there at least to show there are other opinions.

      • Exfed says:

        James please tell your fired employee to sue like the ones at DFAS did when they were fired for failing the security clearance. They got their jobs back.

        • James70094 says:

          Won’t work for these guys. Too much evidence of poor performance. Already been through the process and appeals on a few of them.

      • lazycs says:

        Yep that’s a hassle so its easier to just write came to work and that will suffice for the top rating

    • Valter Ezerins says:

      I’d like to know what agency lazycs works for as it does not resemble any place within the DoD that I have worked.  Top level ratings are fairly rare and need considerable justification.  Yes the above average ranks are over populated but there is grae inflation everywhere.

      • proveittobesafeandright says:

        maybe a contact for the other side who stirs it up all the time?  maybe just someone who is representing the other side?

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