The provisions of 5 U.S.C. Chapter 43 became law as a part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, and were referred to as the "centerpiece of civil service reform." Until then, the only provisions for removing poor performers were those of 5 U.S.C. Chapter 75, which covered all adverse actions. Congress saw these as ineffective and cumbersome, and it sought to simplify and expedite procedures. A poor performance evaluation system shared the blame. Thus, the new provision was entitled "performance appraisal."

5 U.S.C. ' 4302 - Substantive Requirements of Performance Appraisal Systems

The performance appraisal system must provide for:

Periodic appraisal of job performance including--

Standards

- to permit accurate evaluation

- based on objective criteria

- related to the job

Communication

- of standards and elements

- at the start of the appraisal period

Evaluation based on the standards

Assistance in improving unacceptable performance

Reassignment, reduction in grade, or removal

- only after an opportunity to improve performance
 
 

5 U.S.C. ' 4303 - Procedural Requirements Before Taking Action Against Unacceptable Performers

30 days' notice

- in writing

- citing specific instances of unacceptable performance

- specifying critical elements involved

- may extend for 30 days

Representation

Reasonable time to answer

- both orally and in writing

Decision

- in writing

- specifying instances of unacceptable performance

- concurrence by higher level

- within 30 days of end of notice period

- based on instances less than 1 year old from notice date

- instances must meet the notice and other requirements of section 4303

Right of appeal to the Merit Systems Protection Board

- preference eligibles

- employees in the competitive service

- excepted service employees with chapter 75 rights

Under section 4302, the results of a performance appraisal system are to be used to train, reward, reassign, promote, reduce in grade, retain, and remove. Notice that only 2 of these are adverse to the employee. Compare chapter 75, entitled "adverse actions" which is used, with few exceptions, only for disciplinary purposes:

-- 43 is a system, always in place; 75 only to take action.

-- 43 requires OPM approval of the system (Griffin v. Army); 75 contains no such requirement.

-- 43 has many pre-action requirements; 75 does not.

-- 43 requirements are substantive; 75's are procedural.

-- 43 has lower burden of proof once requirements are followed; 75's is higher.

-- 43 has no efficiency of service standard; 75 does.

-- 43 allows no penalty review; 75 does.

-- 43 has permanent, formal standards; 75 can be ad hoc.

Currently, both chapters 43 and 75 exist as bases for actions against poor performers. See Lovshin v. Navy.

For cited cases, see Appendix I.
 
 

Two definitions in 5 C.F.R. ' 430.203 that are important to an understanding of chapter 43:

Performance standard means "the management-approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include, but is not limited to, quality, quantity, timeliness, and manner of performance."

Critical element means "a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable. Such elements shall be used to measure performance only at the individual level."

As noted above, chapter 43 has more prerequisites to taking action than does chapter 75. Thus, setting proper performance standards is the "central focus" of the chapter 43 scheme. See Eibel v. Navy, in Appendix II. The main idea, per Wilson v. DHHS, is that employees are to be spared arbitrary ratings and actions based on subjective impressions. At the same time, this will allow agencies to feel more free to act against problem performers since their actions will be verifiable, and there will be no protracted appeal and no procedural reversals due to an arbitrary rating process.

Section 4302(b)(1) requires the establishment of performance standards and states that they will (1) to the maximum extent feasible permit (2) accurate evaluation based on (3) objective criteria that are (4) related to the job. Standards must set a "level of proficiency," Wilson v. DHHS, not tell the employee how to do the job. Bronfman v. GSA.

Mathematical or numerical standards are not needed. Rather, standards need only be sufficient to evoke a general consensus as to their meaning and content. A performance standard must provide a "firm benchmark" against which an employee can compare his performance, not just an "elusive goal." Donaldson v. Labor. Thus, vague standards such as "sometimes," "occasionally," and "often," parody the requirement because they are too subjective to be interpreted consistently. Wilson v. Navy.

The more professional, scientific, discretionary, higher level, etc. the function to be measured, the less objectivity possible. Wilson v. Navy. The degree of specificity and objectivity required of a performance standard varies inversely to the amount of discretion and independence reposed in the incumbent of the position. Graham v. Air Force.

Extrapolation - Donaldson v. Labor - If the agency's performance plan requires 5 individual element rating levels, providing one written standard will not suffice because extrapolation will be required and it will be impossible tell where to draw line between levels. Thus, standards must be defined at least at levels 2 and 4.

Evolution - Eibel v. Navy - the court noted that it had been 10 years since its Wilson decision, in which time agencies should have gained proficiency in writing standards. Thus, they should "reinspect and revise" even previously approved standards.

Backward standards call what is actually unacceptable performance marginal. They are too subjective and cannot withstand scrutiny because they must be rewritten, not revised, to be understood as setting an objective performance requirement. Eibel; Stone v. DHHS.

Absolute standards are those that allow an unacceptable rating on the basis of a single failure. They are not a violation of law, per se, but are inconsistent with the intent of the CSRA to establish an appraisal system that also rewards because they cannot be exceeded and do not set levels of performance since satisfactory equates to perfection. Exceptions are for situations where a single failure could create a serious risk of death, injury, breach of security, or great monetary loss. Callaway v. Army.

The MSPB can raise an issue as to the sufficiency of performance standards sua sponte because it must be able to apply the standard to determine whether the appellant met it. Stone. Because it is the job of agencies to set their standards, the Board will not rewrite an invalid standard to a reasonable one, even if it might reasonably find that the appellant's performance was poor under any standard.

For cited cases, see Appendixes II and III.
 
 

Section 4302(b)(2) provides for "communicating to each employee the performance standards and critical elements" of his position at the beginning of each appraisal period. The MSPB has interpreted this to be a substantive right of the employee, but that right is to be made aware of standards against which his performance is being judged, not to communication per se. This requirement is of great importance to the chapter 43 system because it is necessary for a meaningful appraisal process and implicates other of the employee's rights, such as the reasonableness of his opportunity to demonstrate acceptable performance and the propriety of his performance standards themselves, as well as their agreed-upon meaning. Cross v. Air Force.

An agency may change its written standards at any time but it must make the employee aware of the new standard. Smallwood v Navy. This is true even at the start of a performance improvement period, Weirauch v. Army, but not if the new standard is materially different or there was no predecessor standard. Boggess v. Air Force. The reason for this is that under such circumstances, there had been no unacceptable performance under the standard first. See Colgan v. Navy. Remember, the idea of chapter 43, as shown by its title, is "performance appraisal," not discipline.

For cited cases, see Appendixes II and III.
 
 

Chapter 43 allows action to be taken on the basis of failure of a single critical element. Section 4301(3) defines unacceptable performance as performance that "fails to meet established performance standards in one or more critical elements of [the] employee's position." It is silent on the propriety of multiple-component standards, but because OPM's regulations (5 C.F.R. ' 430.203, above) say elements may cover factors such as quantity, timeliness, etc., the MSPB has upheld them. Shuman v. Treasury.

Before it may take action on the basis of the failure of a single component or fewer than all parts of the elements, the agency must show that unacceptable performance of that component equates to unacceptable performance of the element as a whole because such an action makes the component equivalent to the element. Id.

Because an employee has a right to communication of what is expected of him, the agency must also show that he knew or should have known the significance of the component to the success of his performance. This can be done by:

- a statement in the standard or in a discussion; or

- other circumstances such as 

- the component's importance compared to the purpose of the element

- its importance compared to other components

- the consequences to the agency's mission of unacceptable performance of the component. Id.

For example, in Callaway, the standard specified it, and the appellant admitted knowledge. In Jones v. National Gallery of Art, the appellant's standard said it, and his supervisor told him. Archuleta v. DHHS was a case where the evidence showed the appellant's timely preparation of a report was "of major importance" to several offices. Butcf. Jones v. VA, where the Board found, as to the component of an element requiring the appellant to update a manual, that there was no showing of the significance of that task, and that it was not apparent.

For cited cases, see Appendixes II and III.
 
 

Under section 4303(b)(6), an agency may take the specified actions against an unacceptable performer, "but only after an opportunity to demonstrate acceptable performance." The Board's lead decision on this topic is Sandland v. GSA, which establishes this reasonable opportunity as one of the appellant's most important substantive rights under the chapter 43 system. Thus, absence of such an opportunity requires the reversal of a chapter 43 action, but if the agency's evidence shows a prima facie case of reasonableness, and the appellant does not show prejudice to his substantive rights, the agency's showing meets its burden. Luscri v. Army.

The Board has never set specific requirements for an opportunity period (often referred to as a performance improvement period and its accompanying performance improvement plan - PIP), requiring only that the spirit of the law be effectuated; that is, that the appellant have a reasonable opportunity to perform in his position and to succeed. OPM's definition leaves equal room for doing what the circumstances of each case require. See 5 C.F.R. ' 432.103(h), defining it as "a reasonable chance for the employee whose performance has been determined to be unacceptable in one or more critical elements to demonstrate acceptable performance in the critical element(s) at issue."

Although an agency may promise help to an employee, it has not been required to do so. If it makes such an offer, but then reneges, the effect of the absence of assistance, not the fact of it, is what determines whether a reasonable opportunity has been provided. Griggs v. Army.

One repetitive issue is disparagement during the period. Its pervasiveness and effect on the employee determine whether it has prevented a reasonable chance for success. Deskins v. Navy, Beamon v. Labor.

For cited cases, see Appendixes II and III.
 
 

As discussed above, the trade-off between chapters 43 and 75 is that the former requires more of a process before an agency takes action, but it is simpler to prove. The applicable standard of proof is not preponderant evidence, but only substantial evidence, defined as "[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree." 5 C.F.R. ' 1201.56(c)(1).

Performance standards that are set in terms of percentages do not require a showing of 100% of the appellant's work, but they do require that the agency not arbitrarily select only examples of poor performance. Rather, some method of selection must be proven. Player v. VA (see also Graham v. Air Force, for a similar requirement as to chapter 75 cases). Standards that are set in terms of an annual requirement may generally be reduced proportionally to fit the length of the opportunity period. Brown v. VA.

The period of performance that can be considered is limited by 5 U.S.C. ' 4303(c)(2)(A) to unacceptable performance during "the 1-year period ending on the date of the notice" of proposed action. However, as a result of Brown v. VA and Sullivan v. Navy, the Board has held that while unacceptable performance may be proven solely on the basis of the performance improvement period, an agency can choose to rely on additional instances occurring during the entire statutory period, including both before and after the opportunity period, even if it has been completed successfully.

See the discussion of multiple-component standards for proof as to critical elements involving more than a single requirement.

For cited cases, see Appendixes II and III.
 
 

There is no specific statutory requirement for these actions, but 5 C.F.R. Part 531, Subpart D, sets forth OPM regulations governing them. They must be based on the results of the performance appraisal system applicable to chapter 43 actions, and some, but not all, of the same requirements apply. Few of these actions are taken.

The rules of these chapter 43 cases: Shuman v. Treasury (the agency must prove that the appellant was on notice of what was required of him), Player v. VA (some method for selecting examples of unacceptable performance must be proven), and Griffin v. Army (the agency must act under an OPM-approved performance plan) all apply. Jones v. VA; Bell v. DHHS; Hudson v. Army; Callan v. Navy.  The rule of Sandland v. GSA (an opportunity to perform acceptably is required before the agency may take action) does not. Lance v. Energy.

The substantial evidence standard is applied by the MSPB (even in mixed cases) and the Court of Appeals for the Federal Circuit, even though this is not the rule in certain of the judicial circuits throughout the country. Parker v. VA; Afifi v. DHHS. Greatest weight is given to performance toward the end of the waiting period. Zaph v. FCC. Performance that is marginal is a basis for denial; performance at the unacceptable level need not be proven. Chesis v. Treasury.

For cited cases, see Appendix IV.

Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 475 U.S. 1111 (1986)

Passage of chapter 43 did not make performance-based actions taken under chapter 75 impermissible. Nonetheless, where an employee has performance standards, the agency may not take an action under chapter 75 for performance that is governed by and meets his standards. It is also permissible for an agency to take a mixed action, under both chapters.
 
 

Fairall v. VA, 33 M.S.P.R. 33 (1986), aff'd, 844 F.2d 775 (Fed. Cir. 1987)

Chapter 43 rules do not apply to chapter 75 actions. Where an agency takes a performance-based action under chapter 75, no opportunity to improve must be provided, but the absence of such an opportunity is a factor to consider in determining the reasonableness of the penalty.
 
 

Graham v. Department of the Air Force, 46 M.S.P.R. 227 (1990)

The case law requires that a standard be applied, even under chapter 75, but it can be ad hoc, not long term. The measurement on which the action is based must be "both accurate and reasonable."
 
 

Bowling v. Department of the Army, 47 M.S.P.R. 379 (1991)

Where a chapter 75 standard is set in terms of percentages, an agency need not introduce 100% of the employee's work product; rather, it may rely on a representative sample. Such a sample must be selected "objectively and systematically," however.
 
 

Billings v. Department of Transportation, 36 M.S.P.R. 421 (1988), aff'd, 861 F.2d 728 (Fed. Cir. 1988) (Table)

A training program is a continuing opportunity to improve performance, so no additional performance improvement period is needed.
 
 

Ortiz v. Marine Corps, 37 M.S.P.R. 359 (1988)

The agency may convert an action that purportedly was taken under one chapter to one under the other by meeting the burdens of proof and requirements of the chapter ultimately relied upon. It may do so, though, only before the Board's hearing, so that the appellant has a fair opportunity to defend himself.

OPM Approval

Griffin v. Department of the Army, 23 M.S.P.R. 657, 84 FMSR 5867 (1984)

An agency may not take a chapter 43 action without an OPM-approved performance appraisal system. It bears the burden of proving, by substantial evidence, that it has such a system.
 
 

Opportunity to Demonstrate Acceptable Performance

Sandland v. General Services Administration, 23 M.S.P.R. 583, 84 FMSR 5871 (1984)

The opportunity to improve is not a procedural matter; rather, employees have a substantive right to an opportunity to demonstrate acceptable performance. The agency must prove by substantial evidence that it afforded that opportunity. Generally, the agency's prima facie showing that one was provided will suffice, but if the appellant challenges its bona fide nature, the agency must submit additional evidence responsive to the challenge to meet its burden.

The case also stands for the proposition that the notice requirements of 5 U.S.C. ' 4303(b)(1) are procedural and, therefore, subject to the harmful error rule.
 
 

Performance Standards

Callaway v. Department of the Army, 23 M.S.P.R. 592, 84 FMSR 5870 (1984)

Absolute performance standards are not per se invalid, but they are generally an abuse of discretion, except in instances where a single act of unacceptable performance could cause death, injury, breach of security, or great monetary loss.

In the absence of a valid performance standard (for whatever reason), the Board cannot consider the charges because that would require the Board to determine a proper standard.
 
 

Donaldson v. Department of Labor, 27 M.S.P.R. 293, 85 FMSR 5194 (1985)

A performance standard must provide a "firm benchmark" against which an employee can compare his performance, not just an "elusive goal." Thus, an agency must establish standards that generally do not require extrapolation of performance requirements beyond one level. To do so requires that a line be drawn between the two unwritten standards, and only the agency, not the Board, can determine where one begins and the other ends.
 
 

Wilson v. Department of Health & Human Services, 770 F.2d 1048 (Fed. Cir. 1985)

Performance standards must be reasonable, sufficient in the circumstances to permit accurate measurement of performance, and adequate to inform an employee of what is needed to achieve an acceptable rating. They must be sufficiently precise and specific to invoke a general consensus as to their meaning.
 
 

Eibel v. Department of the Navy, 857 F.2d 1439 (Fed. Cir. 1988)

Performance standards that define what is actually unacceptable performance as minimally acceptable are improper, "backwards" standards. The "central focus" of chapter 43 is on performance standards, and they are, therefore, of major importance in the validity of a chapter 43 action. Agencies should be expected to be more cognizant of its requirements than they were shortly after passage of the CSRA, so they should revise their standards accordingly because the court will take a harder look at the standards than it previously did. Some standards cannot be saved by communication. These are the ones that would have to be totally rewritten, not just supplemented, to inform the employee of what is necessary to achieve an acceptable rating.
 
 

Communication

Cross v. Department of the Air Force, 25 M.S.P.R. 353, 84 FMSR 6093 (1984), aff'd, 785 F.2d 320 (Fed. Cir. 1985) (Table)

The requirement that performance standards be "communicated" is a substantive right of the employee that implicates other substantive rights--to valid performance standards and to a reasonable opportunity to demonstrate acceptable performance. Thus, the agency must prove by substantial evidence not communication, per se, but that it made the appellant aware of the standards against which his performance was to be measured before he was held accountable for such performance.
 
 

Weirauch v. Department of the Army, 782 F.2d 1560 (Fed. Cir. 1986)

Despite the agency's setting of a year-long, established performance appraisal period, chapter 43 does not limit it to annual appraisals, and it encourages more frequent evaluations. Thus, standards may be changed at any time during the cycle, as long as the employee is made aware of the change. The new standard must be communicated at or before the start of the appraisal period that forms the basis for the action against him, not specifically at the start of the formally designated period
 
 

Proof of Unacceptable Performance

Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 84 FMSR 5868 (1984)

Performance standards may include multiple components, and employees subject to them may be required to perform acceptably on all components. Where a chapter 43 action is based on unacceptable performance of less than the entire standard, the agency must prove by substantial evidence that unacceptable performance of the charged component or components constitutes unacceptable performance of the element as a whole.
 
 

Miscellaneous Considerations

Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985), cert. denied, 475 U.S. 1108 (1986)

The Board lacks authority to review the agency's choice of a chapter 43 sanction.
 
 

Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985)

See Appendix I.
 
 

Fairall v. Veterans Administration, 33 M.S.P.R. 33, 87 FMSR 7020, aff'd, 844 F.2d 775 (Fed. Cir. 1987)

See Appendix I.

OPM Approval

Evans v. Department of the Treasury, 24 M.S.P.R. 571, 84 FMSR 6037 (1984)

OPM's approval of a Department's performance appraisal plan is sufficient to cover a subcomponent's plan that was developed in accordance with the Departmental plan.
 
 

Wood v. Department of the Navy, 27 M.S.P.R. 659, 85 FMSR 5259 (1985)

OPM approval is not necessary for changes in an agency's performance appraisal system that are not required by law or regulation.
 
 

Opportunity to Demonstrate Acceptable Performance

Wilson v. Department of the Navy, 24 M.S.P.R. 583, 84 FMSR 6051 (1984)

An agency need not prove that an employee performed unacceptably prior to the opportunity to improve period.
 
 

Colgan v. Department of the Navy, 28 M.S.P.R. 116, 85 FMSR 5279 (1985)

An agency must notify an employee of the critical elements it believes he is performing unacceptably prior to the performance improvement period. Placement on a PIP must come after an unacceptable, not a marginal, rating.
 
 

Macijauskas v. Department of the Army, 34 M.S.P.R. 564 (1987), 87 FMSR 5512, aff'd, 847 F.2d 841 (Fed. Cir. 1988)

An agency is not required to provide formal training to satisfy the reasonable opportunity to improve requirement.
 
 

Cortes v. Department of the Interior, 26 M.S.P.R. 88, 85 FMSR 5028 (1985)

Smith v. Department of the Navy, 30 M.S.P.R. 253, 86 FMSR 5094 (1986)

A chapter 43 action must be based on the employee's unacceptable performance in his official position, not solely on his performance while on detail.
 
 

Deskins v. Navy, 29 M.S.P.R. 276, 85 FMSR 5461 (1985)

Where the appellant is subject to verbal abuse, insults, and harassment that interfered with his ability to work, where his supervisor told others that he would not be employed by the agency for much longer, and where he was denied necessary overtime and computer access, he has been denied a reasonable opportunity to improve.
 
 

Beamon v. Department of Labor, 41 M.S.P.R. 525 (1989)

Although there was some prejudgment by the deciding official, the appellant made the charged errors, and they were not caused by the agency. Disparaging comments about her were not made until the end of the opportunity period, she was not prevented from performing any of her duties, no responsibilities were taken away, and the opportunity was otherwise reasonable.
 
 

Dodson v. Federal Emergency Management Agency, 88 FMSR 5286 (1988)

Where performance standards require performance of one task to be minimally acceptable, and base better ratings on performance of the next steps of the process begun at the minimally level, the agency need not allow the employee to perform at the higher level if he cannot succeed at the lower.
 
 

Smallwood v. Department of the Navy, 52 M.S.P.R. 678, 92 FMSR 5135 (1992)

A performance standard may properly be changed at the start of a PIP, as long as the changed standard is reasonable and the employee is made aware of its requirements. The case distinguished Boggess v. Department of the Air Force, 31 M.S.P.R. 461 (1986), in which the Board disallowed the agency from changing a performance standard at the start of a PIP because the new standard was materially different, having had no counterpart in the prior standards.
 
 

Mitchell v. Department of Defense, 54 M.S.P.R. 641, 92 FMSR 5401 (1992)

An employee is not deprived of a reasonable opportunity to demonstrate acceptable performance because the agency gave him a mythical exercise, rather than a duty in his job description, to perform during the PIP where the exercise simulated actual expected performance.
 
 

Griggs v. Department of the Army, 53 M.S.P.R. 597, 92 FMSR 5242 (1992), aff'd, 5 F.3d 1503 (Fed. Cir. 1993) (Table)

The supervisor's failure to meet twice weekly with the appellant, as promised in the PIP notice, did not alone require a finding that the PIP did not constitute a reasonable opportunity period. Here, in fact, the reasonableness of the appellant's opportunity was not prejudiced by this failure.
 
 

Goodwin v. Air Force, 75 M.S.P.R. 204 (1997)

There are no specific requirements as to the form that assistance offered during a PIP must take. Training and counseling, per se, are not mandatory.
 
 

Performance Standards

Burnett v. Department of Health & Human Services, 51 M.S.P.R. 615, 91 FMSR 5719 (1991)

The Board will address the validity of a performance standard that it is required to apply, whether or not the issue is raised by the parties.
 
 

Stubblefield v. Department of Commerce, 28 M.S.P.R. 572, 85 FMSR 5364 (1985)

Where the appellant occupies a position requiring the exercise of professional judgment, he is not subject to a mechanical rating system and his standards may therefore be less objective.
 
 

Bronfman v. General Services Administration, 40 M.S.P.R. 184, 89 FMSR 5087 (1989)

Performance standards must inform the employee of the level she is required to meet, not simply of how she is to perform her duties.
 
 

Gonzales v. Department of the Army, 40 M.S.P.R. 241, 89 FMSR 5102 (1989)

A performance standard requiring that production not fall to such a level during the rating period that it could not be brought up to 100% mission accomplishment by the end of the fiscal year was not absolute because the standard could be exceeded and did not allow the agency to take action based on one instance of poor performance.
 
 

Benton v. Department of Labor, 25 M.S.P.R. 430, 84 FMSR 6114 (1984)

Coworkers' opinions on the validity of performance standards are entitled to little weight. That standards were eventually replaced does not raise a strong inference that they were unworkable and arbitrary.
 
 

Byrd v. Department of the Army, 32 M.S.P.R. 300, 87 FMSR 5089 (1987), modified on other grounds, Cochran v. VA, 35 M.S.P.R. 555 (1987)

The rule in Donaldson that prohibits extrapolation more than one level above or below a written standard applies to ratings on individual elements, not to the summary overall rating.
 
 

Santiago v. Equal Employment Opportunity Commission, 26 M.S.P.R. 633, 85 FMSR 5139 (1985)

Although the performance standards of all others in the appellant's work unit changed, it is proper to keep the appellant's the same throughout his appraisal and PIP periods as long as the standards to which he is held are not, in themselves, an abuse of discretion.
 
 

Mouser v. Department of Health & Human Services, 32 M.S.P.R. 543, 87 FMSR 5162 (1987)

An agency may modify its performance standards, as long as the appellant is aware of it before his appraisal period. Moreover, use of percentage "performance indicators," when the performance standards do not set forth requirements in percentages, is permissible because they give objective content to the standard and the appellant was made aware of them.
 
 

Melnick v. Department of Housing & Urban Development, 42 M.S.P.R. 93 (1989), 89 FMSR 5373, aff'd, 899 F.2d 1228 (Fed. Cir. 1990)

A performance standard for "nonroutine tasks," which by their nature are ad hoc and vary widely in scope, may properly be general, as long as the agency provides greater specificity adequate to apprise the employee of the requirements of her actual assignments.

Luscri v. Department of the Army, 39 M.S.P.R. 482, 89 FMSR 5013, aff'd, 887 F.2d 1094 (Fed. Cir. 1989) (Table)

An agency need not establish a level of performance for minimally acceptable performance and may move from unacceptable directly to the fully successful level.
 
 

Communication

Baker v. Defense Logistics Agency, 25 M.S.P.R. 614 (1985), 85 FMSR 5016, aff'd, 782 F.2d 1579 (Fed. Cir. 1986)

An agency may give content to performance standards by informing the employee of specific work requirements through written instructions, information concerning deficiencies and methods of improving performance, memoranda describing unacceptable performance, and responses to the employee's questions concerning performance.
 
 

Thompson v. Farm Credit Administration, 51 M.S.P.R. 569, 91 FMSR 5694 (1991)

In an attempt to clarify a performance standard, an agency may not impose a higher level of performance than was previously called for by the standard.
 
 

Proof of Unacceptable Performance

McKenzie v. Equal Employment Opportunity Commission, 38 M.S.P.R. 380, 88 FMSR 5382 (1988)

An agency's performance appraisal system may require more than failure in a single critical element to sustain a chapter 43 action.
 
 

DePauw v. U.S. International Trade Commission, 782 F.2d 1564 Fed. Cir.), cert. denied, 479 U.S. 815 (1986)

Detailed specifications in a notice of proposed removal may be considered as evidence.
 
 

Player v. Veterans Administration, 32 M.S.P.R. 448, 87 FMSR 5151 (1987)

Where an agency sets forth allowable error rates in terms of percentages, it must establish a methodology for selecting examples of unacceptable performance if it does not provide evidence of the total number of assignments given to the employee during the evaluation period and the total number of errors committed.
 
 

Brown v. Veterans Administration, 44 M.S.P.R. 635, 90 FMSR 5273 (1990)

If performance during a PIP is acceptable, the agency may not take a chapter 43 action solely on the basis of performance that preceded and triggered the PIP. If the PIP performance is not acceptable, an agency generally need not prove more, but if it wishes to do so, it is entitled to rely on instances of unacceptable performance in the same element that occurred within the one year period before the notice of proposed action was issued.

The case also holds that an agency that has a numerical standard set forth on an annual basis may generally use a proportional standard during a PIP period of less than a year unless seasonal or other variations in workload would make it unfair and inaccurate to do so. Performance must be measured against the employee's performance plan. Therefore, where an annual standard is in effect, the agency must show not only that the employee failed the (proportional) PIP, but also that he failed under the annual standard.
 
 

Addison v. Department of Health & Human Services, 945 F.2d 1184 (Fed. Cir. 1991)

The court specifically discussed and approved of the rule set forth in the first paragraph of the description of Brown, above.
 
 

Sullivan v. Department of the Navy, 44 M.S.P.R. 646, 90 FMSR 5268 (1990), aff'd, 949 F.2d 403 (Fed. Cir. 1991) (Table)

An agency may generally rely on instances of unacceptable performance in the same critical element that occur after the successful completion of a PIP. Where no action is taken at the close of the PIP because of improved performance, the agency may take action within a year based on the performance during and after the PIP. Beyond that date, if performance again falls, a new PIP is required. Where the action is based on an earlier PIP, the agency must prove that the PIP represented a reasonable opportunity where challenged on the basis of new technology, procedures, or other work-related factors introduced after its close.
 
 

Blumenson v. Department of Health & Human Services, 27 M.S.P.R. 259 (1985)

Where the agency failed to prove that the appellant's performance was unacceptable under the specific component charged (of a multiple component standard), it cannot prove its case by asserting that it found her performance under the element as a whole unacceptable.
 
 

Parham v. Department of the Navy, 41 M.S.P.R. 207, 89 FMSR 5276 (1989)

Where the performance failures charged properly fit within the critical element relied on by the agency, the fact that they may also be chargeable under another element does not affect the propriety of the action.
 
 

Atamantyk v. Department of Defense, 49 M.S.P.R. 432, 91 FMSR 5419 (1991)

Where the appellant is informed only that his performance in one component of a critical element is unacceptable, the agency cannot base a chapter 43 action on another component if the charged component involves an entirely different set of tasks and requirements. The Board specified, however, that it was not ruling that an agency may never base an action on a component unless it first notes deficiencies in that component.
 
 

Greer v. Army, 79 M.S.P.R. 477 (1998)

Normally, the Board "should give deference to the judgment by each agency of the employee=s performance in light of the agency=s assessment of its own personnel needs and standards."
 
 

Miscellaneous Considerations

Cohen v. General Services Administration, 48 M.S.P.R. 451, 91 FMSR 5298 (1991)

The Board will not consider an allegation of disparate treatment in a chapter 43 appeal absent an allegation of discrimination that amounts to a prohibited personnel practice under 5 U.S.C. ' 2302.

Ortiz v. U.S. Marine Corps, 37 M.S.P.R. 359, 88 FMSR 5229 (1988)

See Appendix I.
 
 

Vidal v. USPS, 79 M.S.P.R. 126 (1998)

Citing the Federal Circuit's decision remanding this appeal, 143 F.3d 175 (Fed. Cir. 1998), the Board held that where an agency removes an employee from a job he is skilled in, places him into a job he cannot handle, and then removes him, it must show not only that there was a legitimate management reason for the reassignment, but also that his removal promotes the efficiency of the service more than would his retention in or return to his former position. The agency did not meet that burden here because the appellant's former job still exists and its continued performance was not shown to be unnecessary.
 
 

Hsieh v. Defense Nuclear Agency, 51 M.S.P.R. 521, 91 FMSR 5705 (1991)

Kadlec v. Department of the Army, 49 M.S.P.R. 534, 91 FMSR 5452 (1991)

Romero v. Equal Employment Opportunity Commission, 55 M.S.P.R. 527, 92 FMSR 5497 (1992), aff'd, 22 F.3d 1104 (Fed. Cir. 1994)

Each of these cases explains the requirements for taking action against employees under the PMRS (Performance Management and Recognition System), which covered GM supervisors and managers at grades 13-15. The PMRS is now of only historical interest, since it ended in 1993.

Parker v. Defense Logistics Agency, 1 M.S.P.R. 505 (1980)

The substantial evidence standard applies to the Board's review of the denial of a within-grade increase (WIGI), largely because it would be anomalous to apply a higher standard to review of those actions than to demotions and removals based on unacceptable performance.
 
 

Bell v. DHHS, 5 M.S.P.R. 420 (1981)

An audit of all of the appellant's work is not required to prove the propriety of the agency's denial. 
 
 

Hudson v. Department of the Army, 49 M.S.P.R. 202, 91 FMSR 5416 (1991)

Where the appellant's performance standard is written in terms of a percentage, and the agency introduces proof of less than 100% of her work, it must prove that her performance does not meet her performance plan.
 
 

Hurt v. DHHS, 6 M.S.P.R. 238 (1981)

Proof that co-workers were performing better than was the appellant is not necessary to deny a within-grade increase. The absence of such proof does not affect the propriety of the denial action.
 
 

Chiodo v. Department of the Treasury, 6 M.S.P.R. 155 (1981)

That the employee was ill during much of the waiting period does not justify reversing the denial of a WIGI if an acceptable level of competence (ALOC) is not met.
 
 

Zaph v. Federal Maritime Commission, 6 M.S.P.R. 619 (1981)

Although the entire waiting period is to be considered in the ALOC determination, great weight is accorded to performance during the late stages of the period.
 
 

Chesis v. Department of the Treasury, 20 M.S.P.R. 383 (1983)

Marginal performance of a critical element is not a basis for a chapter 43 removal or demotion action, but it suffices for the denial of a WIGI.
 
 

Jones v. VA, 25 M.S.P.R. 328 (1984)

The agency must prove that the appellant knew what performance constitutes an ALOC. If the agency's action is based on performance in less than all components of a critical element, the agency must meet the chapter 43 "Shuman" rule and show that failure on that component means the ALOC standard is not met as to the element as a whole. 

Callan v. Department of the Navy, 26 M.S.P.R. 6, 85 FMSR 5342 (1984)

Agencies may not take action under 5 C.F.R. Part 531, Subpart D, to deny a within-grade increase in the absence of an OPM-approved performance appraisal system.
 
 

Lance v. Department of Energy, 28 M.S.P.R. 467 (1985)

The opportunity to demonstrate acceptable performance before the denial of a WIGI is not a substantive right. The level of competence determination must be made under an appraisal system established under 5 U.S.C. ' 4302.
 
 

Afifi v. DHHS, 33 M.S.P.R. 282 (1982)

Even in mixed cases, the Board will review a denial under the substantial evidence standard.
 
 

Nalls v. Department of the Air Force, 46 M.S.P.R. 603 (1991)

An ALOC means the "fully successful" level of performance under the most recent official rating. Under Lance, however, the agency may also deny despite an inconsistent official rating, as long as it informs the employee of its action and the reason for it.
 
 

Bowden v. Department of the Army, 59 M.S.P.R. 662 (1993)

The Board must make an affirmative finding that the employee is performing at an ALOC. It will not grant a WIGI by default as a result of procedural error.