Performance standards may take on new importance with an increasing emphasis on “pay for performance” in the government.
With that in mind, the decisions of the Merit Systems Protection Board (MSPB) on what constitutes an acceptable performance standard may become more significant.
A recent review of an MSPB decision by the Court of Appeals for the Federal Circuit may make a difference to federal supervisors in deciding how performance standards may be written and applied.
In a Navy case (Guillebeau v. Dep’t of the Navy, 93 M.S.P.R. 379 (2003)), the Merit Systems Protection Board (MSPB) upheld the removal of a federal employee from her job as an engineer responsible for designing web pages.
In its decision, the MSPB found that the removal of the employee was justified. It also found that the performance standards for the employee were not “absolute” performance standards.
The finding by the MSPB is important because it generally concludes that an absolute performance standard will not be upheld. An absolute performance standard is one providing that a single incident of poor performance will result in an unsatisfactory rating on a job element. (Boyd v. Dep’t of the Navy, 88 M.S.P.R. 435, 439 (2001)
In the most recent decision though, the court disagreed with the MSPB and concluded that the Navy had removed an employee based on an absolute performance standard.
Nevertheless, it upheld the removal of the employee. The court ruled that “…the Board has misconstrued the statute and erroneously created a prohibition of nearly all performance standards that it deems absolute.”
In short, the employee stays fired and the decision of the court is that “the statute does not bar absolute performance standards, and we specifically disapprove of the Board’s decisions in the Callaway line of cases.”