Perhaps Firing This Employee Would Have Been Easier

A VA employee who was placed on a performance improvement plan and given a notice of proposed removal for unacceptable performance was offered a transfer. The employee went to the MSPB and then to court arguing that the transfer was involuntary.

A Department of Veterans Affairs employee tried unsuccessfully to challenge her transfer to a lower graded position as involuntary, even though the transfer was in lieu of her removal for unsatisfactory performance. (Rethaber v. Merit Systems Protection Board and Department of Veterans Affairs, C.A.F.C. No. 2006-3311 (nonprecedential), 5/15/07)

Ms. Rethaber was a Rating Veterans Service Representative who ended up in performance assistance plan a couple of years after being hired by the Department. She was then placed on a 90-day Performance Improvement Plan (PIP), but her work was still judged unacceptable. At this point a notice of proposed removal for unacceptable performance was issued to Rethaber. Before making a final decision, however, the agency offered to transfer her to one of several lower-graded positions rather than remove her. The agency’s notice included a form for Rethaber’s response and signature. (Opinion pp. 2-3)

In an apparent attempt to keep from being “voluntarily” demoted, Rethaber did not sign the form, initialed it where she made a cross out, and returned the form with this written on it: “Let me make it unquestionably clear that I am electing to accept the agency’s offer of a position acceptable under threat of termination….The position so elected is: 1. Legal Instrument Examiner…” (p. 3)

The agency took this as Rethaber’s acceptance and sent her a decision notice indicating that her performance was “clearly unacceptable” but that she was being voluntarily transferred to the selected position. (p. 3)

Rethaber appealed to the MSPB arguing that her transfer was involuntary. The Board concluded that she had accepted the transfer and dismissed the appeal for lack of jurisdiction. (p. 3)

The court sided with the Board. The fact that she did not sign the transfer paper was not persuasive. The court pointed to the Rethaber’s note indicating she was “electing to accept the agency’s offer,” albeit under threat of removal. “A choice between two unpleasant options does not make the choice coerced or involuntary.” (p. 5)

As for Rethaber’s argument that the agency did not give her enough time to make a decision on the transfer and therefore it was coerced, the court disagrees. The decision points out that she was given until the end of the next day to return the transfer form and during this time Rethaber was able to meet with her union representative. Finally, as to the argument that she was never told what was specifically wrong with her performance and that the agency knew it could not make its performance case, the court indicates that Rethaber met frequently with supervisors to discuss performance. She also received written counseling memos, a performance assistance plan, and a PIP. All of these documents told her  the required performance standards and that her work accuracy was below the required level.

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.