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: