Addressing Unacceptable Performance Has Been Made More Difficult

Cases based on unacceptable performance are challenging and relatively rare. They are becoming even more difficult.

For those readers who instinctively perceive terminated employees as victims and management as the oppressor, when it comes to performance cases, I agree. If done for the right reasons, cases against employees based on the provisions of 5 CFR Part 432 address the sad fact that some people are promoted to their level of incompetence and others just can’t keep up with inevitable changes in the workplace.

Cases of unacceptable performance involve decent people in the wrong job. Rather than punishing the management that selected and/or promoted an individual to the wrong job, action is taken to demote or remove the employee for failing in one or more critical elements of their job. Those who are lazy and/or indifferent should be disciplined, as would a kid who doesn’t do the assigned homework. I work with supervisors and managers to distinguish between those who won’t and those who can’t.

Around this time last year, an article of mine ran of this website concerning a Court of Appeals decision that might seriously affect the willingness of HR specialists and attorneys to use 5 CFR 432 in cases of unacceptable performance, as the law intends. That’s because the court’s decision, ostensibly concerning a USERRA (Uniformed Services Employment and Reemployment Rights Act) claim, indicated that a performance case must justify the issuance of a “PIP” in addition to showing that the employee failed during that opportunity period.

For the uninitiated, PIP stands for Performance Improvement Plan, which is a term of common usage rather than law. The Code of Federal Regulations (CFR) terminology is “Opportunity to demonstrate acceptable performance”, often referred to as the opportunity period. Most Feds are more familiar with PIP, so I’ll use it as I explain my concerns.

The process

When a supervisor comes to HR with a case of unacceptable performance, the first job of the subject matter expert is to ensure the case concerns issues of competence rather than behavior. A case of unacceptable performance is one of inability to perform at least one critical element at grade level. 

If the case is based on a demonstrated belief that the employee lacks the knowledge, skill and/or ability s/he is paid to possess and demonstrate every day, the next issue is the performance plan. Is there a critical element where failure is demonstrable? If one critical element is being performed unacceptably, then the employee is considered unacceptable overall per the CFR.

Passing through those two gates leads the supervisor to a PIP. HR (and often legal) offices will, in consultation with the supervisor, compose a legalistic document setting out the opportunity period and the minimum required for the employee to pass. The PIP memo will also clearly state that, should the employee fail, demotion or removal will result.

Anticipating a judge

Knowing that either of these actions can be appealed to the Merit Systems Protection Board, HR and legal offices place a burden of documentation on the supervisor that few in management have ever experienced. 

An MSPB hearing is much like going to court, where depositions, admissions, interrogatories, rules of civil procedure, etc. are the norm. Accordingly, your agency’s legal folks begin imagining a legal case where they must play to win or achieve a similar outcome through settlement (often a resignation). Having presented cases to the Board as a non-attorney ages ago, I know that no representative has ever felt they were bringing too much evidence to the hearing. We always want more… and that burden of producing and explaining that evidence falls entirely on the first-level supervisor.

In the case of Santos v. NASA (decided by the Federal Circuit back in May 2021) the court indicated that, should an employee raise a question as to whether the PIP was justified, an agency must prove its case twice. It must show that performance was bad enough to warrant a PIP and then, after being given a proper opportunity period, the employee failed again. Santos implies that s first-level supervisor who steps up to say an employee can’t cut the mustard must have a bundle of documentation… in order to invite him/herself to produce a second bundle.

The MSPB takes a quantum leap

During the ensuing year, the presidency changed and 2 MSPB vacancies (the Board consists of 3 members but, due to partisan politics, replacements weren’t approved by the Senate for several years) were finally filled. Having a quorum, the Board began picking through years of unfinished business. One of the cases recently decided by the reconstituted Board is Lee v. Department of Veterans Affairs.

Ms. Lee was placed on a PIP way back in 2013. She failed to improve to acceptable performance during the opportunity period and was fired. Consequently, she appealed her case to the MSPB and one of the Board’s administrative judges decided against her. The VA had proven its case.

Unhappy with the judge’s ruling, Ms. Lee exercised her right to appeal that decision to the full Board in Washington, DC… where it sat. Ms. Lee’s only argument with the initial decision concerned the sequestration of witnesses. Her hearing was done remotely and she alleged that some agency witnesses overheard the testimony of others when they shouldn’t have.

Her 2015 appeal was decided by the two new members in May of this year. They found her claim of procedural mistakes unconvincing. Following that analysis, however, the Board brought up the appeals court’s Santos decision without Ms. Lee ever having questioned the validity of her PIP! They found that Santos has changed the way performance cases will be decided and sent this stale case back to the judge (assuming she’s still employed) to decide if Ms. Lee’s “pre-PIP performance was unacceptable.” 

The new Board members wrote that they are initiating this remand with the intent of having all performance cases decided in terms of both “pre-PIP” evidence and evidence from the PIP itself – whether the employee raises the issue or not. 

As one who has explained performance appraisal processes to federal audiences over decades, I’ve been considering the effect the Santos and Lee decisions will have across the Executive Branch. I have tried to explain the workload associated with PIPs honestly. Too often, it discourages even the best of supervisors. Now I must explain that some similar amount of documentation (we don’t yet know how much or for how long) will be required to justify giving a PIP. 

Reality check

My heart goes out to the “Can’ts”. Simply stated, their crime is being in the wrong job for their skill set. Management put them in that job. Back in the day, I prosecuted unacceptable performers who failed a PIP. Winning those removal cases never felt good. Unlike disciplinary removals, when people would say “They fired themselves”, these were folks whose best just wasn’t good enough.

From the other perspective, those people were earning more money than they were worth… and it’s not our money to spend! Their inability has the high performers frustrated. If we’re both paid as GS-11s or WG-10s, it’s not fair for one employee to juggle a larger and more difficult workload while the other gets to do the simple stuff. I wrote about this years ago in an article titled “The Effects of Rotting Apples”.

My perceptions have been confirmed by evidence. The Office of Personnel Management’s “Federal Viewpoint Survey” has been collecting data since 2010. Over the past dozen years, the question with the worst score is, “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.”

Cases of unacceptable performance don’t come to HR often. That’s not because your agency doesn’t have them. Rather, supervisors and managers are aware that the very worst performers in your agency have been rated Fully Successful or Meets Expectations year after year. Knowing this, who would invite upon themselves an enormous workload without any incentive to do so?

That workload has just grown larger. No doubt, there have been supervisors who used PIPs to harass employees for the wrong reasons. But this is far from widespread. Instead, an onerous process that has discouraged thousands, has been made more arduous by a court and a Board. It doesn’t take an oracle or clairvoyant to predict this additional burden of proof will result in even fewer actions taken under 5 CRF 432.

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