Removing a 30-Year Fed for Performance Is A Challenge

Removing a federal employee for poor performance is a long, difficult job. Some agencies do not try to take performance actions but find other reasons to remove an employee. The Dept. of Education took the performance route in this case which was reviewed by the Federal Circuit Court of Appeals.

One of the toughest personnel actions for an agency to take and make stick is removal of an employee based on poor performance. In a recent case decided by the Federal Circuit Court of Appeals, a GS-12 Equal Opportunity Specialist for the Department of Education challenged her removal that was based on unacceptable performance. The Merit Systems Protection Board upheld the agency’s removal decision and the appeals court affirmed. (Fain v. Department of Education, C.A.F.C., No. 05-3002 and -3003, November 16, 2005). Here are the facts as related in the court’s decision–

For the 2000-01 performance period Ms. Fain received a “fail” rating. She was given a 120-day period to improve the rating plus a six-week extension. During the performance improvement period, she met with her supervisor concerning performance on 13 occasions. In the 2001-2002 rating period, Ms. Fain received another “fail.” A 25-page notice of proposed removal was then issued to Ms. Fain, citing her continued failure to receive a “pass” rating in two critical elements of her performance plan. In her reply to the notice, she argued that because she had been part of a team performance award, her work was acceptable. The deciding official nevertheless removed this 30-year employee.

Ms. Fain appealed to the MSPB, arguing among other things reprisal and age discrimination. Following a lengthy hearing the AJ upheld her removal. The full Board denied her petition for review, so Ms. Fain took her case to the Federal Circuit Court of Appeals.

Ms. Fain cited the Education Department’s failure to issue a prompt decision following the notice of proposed removal—it took more than 5 months for the decision to be made. She argued this was a waiver by the Department and harmful error since she had the threat of removal over her head for an unduly long period of time. The court concluded that the delay was not harmful to her in any way and in fact arguably benefited her since she had more time in which to improve her performance. (Opinion pp. 6-7)

As for Ms. Fain’s argument that she had been given no specifics as to how her performance was deficient, the court called this “entirely unpersuasive in the face of the voluminous record documenting the Department’s repeated attempts to notify Fain in detail about her performance deficiencies and its repeated efforts to help her improve.” (p. 8) The facts cited by the court are instructive and worth setting out in some detail:

First, as acknowledged by the AJ, the Department notified Fain of her unacceptable performance in an eight page letter after she “failed” her 2000-2001 performance appraisal. That letter included four pages of specific strategies for Fain to use to reach a “passing” level. The Department also gave her a 120-day period of time to implement those strategies, which it later voluntarily extended by six-weeks to ensure that she had sufficient opportunity to demonstrate acceptable performance in particular areas evaluated on her performance appraisal. Second, the Department arranged for Fain to have regular performance progress meetings with her supervisor during the entire 162-day improvement period, which she did on thirteen separate occasions, more than once every two weeks. Following each of those meetings, Fain’s supervisor prepared a memo describing her discussion with Fain about deficient performance areas, specific assignments, and suggestions for improvement. She provided these memos to Fain for Fain’s ongoing reference. The AJ took particular note of these meetings in her decision. Third, as the AJ explained, following both Fain’s extensive opportunity to improve period during which she showed no change in her performance and her second “failed” performance appraisal for 2001-2002, the Department carefully detailed the deficiencies in her performance in a twenty-five page notice of proposed removal and provided numerous, very specific instances where her performance was unacceptable. Lastly, when given the opportunity to respond to the notice of proposed removal, Fain asserted that her performance was acceptable based merely on the fact that she received a team award in 2001. The AJ observed, however, that the award was based upon the team’s performance as a whole, not on Fain’s individual performance. Moreover, Fain did not cite to even one project where she demonstrated passing level work or received positive feedback. (pp. 8-9)

Finally, the court concluded that it was clear that Ms. Fain was not removed in reprisal for her EEO activity. Both the MSPB and the court put great weight on the fact that the supervisor first learned of the EEO complaint a week after the notice of proposed removal was issued. Also, the deciding official testified that he did not consider this, and Ms. Fain offered no evidence to the contrary (p. 9).

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.