How Many Judges Does It Take To Change A Light Bulb?

The author says that a recent MSPB decision highlights something he believes has gone wrong in government, that being an unwillingness or inability to effectively deal with poor performing employees.

Answer: Just one, she holds the bulb still and the world revolves around her.

An old case caught my eye.

I recently read a Merit Systems Protection Board (MSPB) decision from back in April of this year involving the Department of Agriculture (USDA) and an employee they fired.  It ticked me off.  From my vantage point, it reveals something that’s gone terribly wrong in government.

I think one of our greatest competitive disadvantages is our unwillingness or inability to effectively deal with our worst employees.

In the case that finally caught my attention, the appellant (Floyd Adamsen) was fired for reasons of unacceptable performance.  He lost his case when heard by an MSPB administrative judge.  The judge’s decision was appealed to the Board itself – three presidential appointees.  The Board denied the appeal and he escalated the case to the US Court of Appeals for the Federal Circuit.  The arguments were:

  1. The appellant wasn’t given a full and fair opportunity to prove his competence;
  2. The standards he was held to were unrealistic or unfair; and
  3. The USDA’s performance evaluation system wasn’t approved by the Office of Personnel Management (OPM) as required by regulation.

The Appeals Court didn’t buy the first two arguments.  They did, however, remand the case back to the Board regarding a technical issue.  Thirty years ago, OPM established a requirement that agencies must get OPM approval when establishing or changing an appraisal system.  The provision is at 5 C.F.R. § 430.209(a) and reads:

An agency shall submit to OPM for approval a description of its appraisal system(s) as specified in § 430.204(b) of this subpart, and any subsequent changes that modify any element of the agency’s system(s) that is subject to a regulatory requirement in this part.

Thus, an OPM regulation regarding its approval of USDA’s appraisal system was the only remaining issue in the case.  It’s a silly formality, but in performance case, the agency must trot out some letter from OPM and place it before the judge.  It has been an MSPB formality since the early 1980s.

Examining the minutiae

No substantive change to USDA’s evaluation system had been effected in the decade preceding Dr. Adamsen’s case.  After an exhaustive review of evidence (the decision runs 23 pages including footnotes and Member Rose’s dissent) Board Members Grundmann and Wagner determined Dr. Adamsen the winner… due to the absence of a specific piece of paper they wanted to see.  The removal was reversed and Agriculture was ordered to “…cancel the appellant’s removal and restore him to his former position effective April 27, 2007…” and “…pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act…”  Additionally, the appellant was advised, “You may be entitled to be paid by the agency for your reasonable attorney fees and costs…”.

Based on all four of the decisions in this case (initial appeal, Board review, court review, and Board decision on remand from the court – spanning 4+ years), it is safe to assume that Agriculture proved that Dr. Adamsen was deficient in at least one “critical element” of his performance plan by what the lawyers and judges call “substantial evidence”.  It was their filing system, however, that failed them.

It is common for those who win on appeal to also receive back pay and attorney fees as well as reinstatement. Perhaps, this novel defense merits such fees.  That’s the way the Federal appeals system works.  I don’t begrudge the appellant or the skills of his representative.  I begrudge the system itself.

Most of us with experience in labor/employee relations are aware of how much time, effort and expense it takes to remove someone for unacceptable performance.

First, a supervisor has to muster the courage to tell the employee their work is substandard and weather the storm that may follow receipt of such a conclusion.

Second, they, their human resources folks, and their attorneys have to dissect critical elements and performance standards to be sure such documentation will stand up to a judge’s scrutiny.

Third, they must construct a “performance improvement plan” (PIP) that meets the requirements of their agency’s and OPM’s regulations.

Forth, that same supervisor must deliver the “PIP Memo” to the employee who, in most cases, protests that their performance is no worse than others’ and assumes some ulterior motive on the part of management.

Fifth, that same supervisor must closely monitor that individual’s performance over the course of 1-3 months and meet with them regularly to point out every success/failure that’s been documented.

Sixth, if the employee fails the PIP, HR and legal will likely prepare a detailed notice telling the employee of management’s intent to fire them.  They must determine which official is the appropriate one to sign it, and then who should deliver and explain it to the employee.

Seventh, they must wait a month while the employee continues in their employ.

Eighth, if the employee chooses to respond to the proposal to remove, HR/Legal/Management must have a “Deciding Official” hear that reply to the notice and ensure no lower-level manager influences that person’s perspective.

Ninth, assuming the employee’s pleas are unconvincing, HR and legal must prepare a “decision letter” informing the employee of their last day of work.  This decision letter must be technically correct in how it relates to the proposal, and must include the MSPB’s regulations and an appeal form for the employee to complete.

Tenth, if the employee appeals (why not?), Legal must prepare its “case in chief”, as the burden of proof falls on management as the “moving party”.  That same supervisor will be summoned off the job to prepare for lengthy testimony that ensures an MSPB judge will understand technical matters – in this case “nitrogen fertigation management”.

Eleventh, if the agency prevails they can anticipate the possibility that the employee will appeal to the Board itself.  And the beat goes on.

As if all that weren’t enough, the agency must locate an ancient memo from OPM validating their appraisal system.  Even Job, of the Old Testament fame, would throw in the towel.

The case of Paperwork v Reality

The USDA employs about 100,000 people.  It is difficult to imagine that such a large department had been on the wrong side of OPM for over a decade and that this case finally unearthed an invalid appraisal system.  A rational human being would bet dollars to doughnuts that their appraisal system was approved back at the time it was submitted.  If not, can an appellant find anything in it that is defective or illegal?  …or is the existence of a 15 year-old piece of administrative paper what really matters here?

The Board decision in this case (which sets precedent) presumes the documentation is lacking and puts an appellant who was proven to be unacceptable back on the job.  Why not presume it does exist, and put the burden on the appellant to show otherwise?  Why not call over to OPM and ask?  Why not review Agriculture’s evaluation system to see violates letter, sprit, or intent of law?

Lately, the Board has been working to make Feds more aware of Nine “Merit Systems Principles” written into statute at 5 U.S.C. 2301(b)(6).  To that end, the sixth principle is:

Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

That’s written into law.  The requirement for OPM approval isn’t.  Doesn’t the spirit and intent of statute trump an administrative regulation, or did the attorneys who trained me have it all wrong?

Silly assumptions and simple solutions

Such outcomes should never happen again… ever.  Why doesn’t OPM provide the MSPB with a long list of approved appraisal programs and close this loophole?  After all, every Federal activity with a union posts annual reminders of the “Weingarten right” to union representation.  Surely, the cost to the government of this one case is evidence enough that an annual list forwarded to the Board is worth the time it would take to prepare it.

Better still, why doesn’t OPM eliminate the requirement it established about 30 years back.  Clearly, the Appeals Court and MSPB are miscalculating its importance and using a sentence of the Code of Federal Regulations to undermine months of time and effort to do what the law considers a Merit Principle.

From where I sit, our appeals/complaints system has become so legalistic that managers, human resources specialists, and agency attorneys are reluctant to do the right thing.  Winning cases are settled, simply to preclude the nuisance and costs of administrative litigation that could result in a decision as technical and silly as this.

I know nothing about Dr. Adamsen or his job performance.  He has been reinstated by the Board, so I trust he is back to work and getting paid every two weeks.  I hope that, due to a technical card falling in his favor, he is showing USDA that he is capable of doing his job successfully and both parties can put this case behind them and focus on work.  I wish him and his agency all the best as they pick up the pieces and move forward.

Meanwhile, in the seminars I present, I will continue to encourage supervisors and managers to take on unacceptable performers.  I know they must slog through performance improvement plans, exercise patience during a mandatory one month notice period once all the evidence of failure has been harvested, and not react in anger should the employee file an appeal with the MSPB or EEOC.  It is their statutory right to do so.

I do, however, offer those management officials my condolences and sympathy regarding a system that is so time consuming, cumbersome, and fraught with technicalities as this case reflects.  Perhaps there’s a FedSmith reader who can convince OPM to look into this and do something simple to ensure history doesn’t repeat itself.  After all, there are Feds who take those Merit Systems Principles seriously.


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