Performance-Based Actions: How Much Is Too Much?

In what situations is the disciplinary process the best route to take for employees who aren’t performing?

When starting into a two-day seminar titled Dealing with Performance and Conduct Issues, I often ask those attending to consider a couple of general questions. One of those is, “Have you ever worked with someone who was being paid 2 grades higher than they could actually perform?” The reaction is instantaneous – often accompanied by quiet groans and rolling eyes.

Later in that class we touch on the “Peter Principle”. Memorialized in his book of the same name, Dr. Laurence Peter observed that employees eventually rise to a level of incompetence. Consider a former apprentice who is now a journeyman, when s/he should have been held back in the first year or two of training. …or a specialist who began as a GS-7, is now a GS-12, but performing at the level of GS-9. …and perhaps the best illustration of Dr. Peter’s principle is the common remark, “The best employees don’t necessarily make the best supervisors.”

I recently came across a decision from the Federal Court of Appeals and a report from the Merit Systems Protection Board (MSPB) that seemed related to one another in the mind of this former labor/employee relations specialist. Each has me reflecting on unacceptable performance cases and how they should be addressed.

Step increases and appraisals

In April of this year, the MSPB published a “Research Brief” bemoaning how step increases have become virtually automatic in government, despite the fact that they should only go to those performing at an “acceptable level of competence” (5 CFR § 531.409). As summarized in an article by my long-ago boss Ralph Smith, withholding step increases occurs at a rate of about 1/1,000 cases.  

I am among those who believe Feds are more capable and productive than the press, politicians and public want to believe. Assuming you are of, by and/or for civil servants, you know that the population of less-than-competent employees far exceeds .1%. The vast majority of Unsat performers are rated at least fully successful… or better. 

In order to withhold a step increase, the most recent rating of record must be lower than successful (5 C.F.R. § 531.404(a)). The paperwork involved in issuing an unscheduled rating below the satisfactory level, however, leads most managers to just give the employee a pass. Moreover, issuing a-less-than-satisfactory rating can lead to a reconsideration process which, if unsuccessful for the stunned/disappointed/angry employee, eventually leads to appeal rights with the MSPB and … Are you getting the picture?

All this, however, misses the mark. My impression over decades is that most employees considered unworthy of a step increase are unacceptable performers. If that’s the case, months of toil over a step increase only distracts from the larger issue of unsatisfactory job performance. Statute (5 U.S. Code § 4303) dictates unacceptable performers be demoted or fired if failure is confirmed following a 30-90-day performance improvement plan (PIP). Given all this mess, withholding only 1/1,000 step increases is quite understandable.

The court wants even more documentation

A month before that MSPB report, the US Court of Appeals for the Federal Circuit issued an opinion concerning a performance case that stunned those who work in labor/employee relations. In Santos v NASA (ably summarized by Susan Smith), the MSPB had sustained Mr. Santos’ removal for unacceptable performance. That finding was appealed to the court over issues relating to the Uniformed Services Employment and Reemployment Rights Act (USERRA). 

The court found nothing noteworthy regarding USERRA, but unexpectedly vacated the Board’s findings and remanded the case with a finding that an agency must justify its having initiated a PIP. That was a shock. For decades, agencies were required to show a fair assessment during the PIP along with documentation demonstrating that the employee failed to sufficiently improve. Now they must additionally present evidence that the PIP itself was predicated upon examples of unacceptable performance. 

Again, the odds of an agency ultimately winning its case are high. Nevertheless, Santos adds yet another layer of complexity to labyrinth of performance cases. With this ruling, the administrative disincentives have achieved Godzilla proportions.

Moving away from unacceptable performance cases

The Civil Service Reform Act (CSRA) was passed and signed into law in 1978. A major intent of that watershed law (it created the MSPB) was to more easily remove the “dead wood” from federal agencies. If contested, by grievance, appeal or complaint, the Act specified that discipline cases be proven by a “preponderance of evidence” but performance-based actions need only be proven by “substantial evidence” – a much lower bar to clear.

Decades of court decisions (Santos is hardly the first), however, have complicated the process of proving performance-based cases beyond imagination. The original intent of the CSRA has been undermined by the volume of agency evidence required by the MSPB and courts, coupled with the many months needed to reach a conclusion and effect action. 

Supervisors have become discouraged in hearing stories from their peers who have attempted performance-based actions. Competent HR specialists know that the road leading to an outcome is long… and paved with documentation. Accordingly, like many others in my field, I now commonly advise supervisors and managers to rely on discipline rather than ratings and PIPs. 

Taking a different route

“Failure to follow instructions” is a disciplinary charge that directly relates to job performance. When a supervisor tells you, “I need your report by the end of the week” and it’s not submitted within that time frame you could be subject to discipline for failure to follow instructions. Of course, if your reasons are considered reasonable and/or valid, disciplinary action isn’t appropriate. 

If, however, you’re just unable to keep up with such complex work, it may be you’re in in the wrong job. Technically, that’s an issue of competence, but a longstanding Federal Circuit precedent dating back to 1985 (Lovshin v. Navy) allows agencies to use discipline in lieu of performance when addressing performance issues.

In fact, there are many disciplinary charges that relate to job performance. Among them could be carelessness, inattention, wasting time, negligence, and even many safety/security violations. In the past, HR specialists have tried to separate failings that are willful from those reflecting on competence – the former being dealt with using discipline and the latter performance. Given the arduous road prescribed for performance cases, it’s time to revisit that distinction.

The argument for discipline

While suspensions, demotions and removals still require “due process” (notice, right of reply, and decision), each instance of non-compliance can result in a distinct corrective action. As penalties escalate, the writing on the wall becomes as clear as a PIP would have been. The difference is documentation. 

Assuming the employee isn’t being inappropriately targeted (due to whistleblowing, EEO factors, union activity, etc.), as discipline escalates, s/he would do well to look for a position that’s a better fit. That hope would be the same if the employee were failing a PIP. Each process has dire consequences to a person’s career.

Assume for a moment that, over and over again, a Public Affairs Officer doesn’t notice and correct obvious errors. Then there’s a Pipefitter who repeatedly fails to properly interpret blueprints. Discipline might begin with counseling, then a reprimand, and eventually result in suspensions. If the agency eventually proposes removal for a final charge of, say “careless workmanship”, there’s only one event needed to prove the case. The penalty of removal is predicated on previous actions that are, in essence, water under the bridge. Therefore, only one instance of incompetence becomes the proverbial straw.

A lingering bad taste

We all want employees to succeed, if not thrive in government. Most of those who aren’t capable of meeting a job’s demands are decent people. They were mistakenly placed there by agency management. To complicate matters, some have come to believe their work is fine because inflated performance ratings have affirmed that perception. Their failings are more management’s fault than their own.

Disciplining such folks may feel like attacking victims of mismanagement. But allowing their employment to continue in a job they can’t fully perform is the flip side of a binary decision, lest some miracle take place. In the meantime, coworkers are called upon to pick up the slack. They will eventually resent having to do their own jobs plus tasks of the unacceptable performer, who’s being paid the same or more as they are. 

If the decision-making threshold is crossed and management is ready to take action, the disciplinary route may be preferable to prolonged, evidence-laden PIPs. HR specialists should consider this when advising those supervisors/managers willing to take on such a challenging task.

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