Critical Elements and Performance Standards

• Byrd v. Army, 32 MSPR 300 (1987). An agency with a 3-level performance rating system for each element may require that an employee meet the fully successful level of performance in order to be retained in his or her position provided that one of the rating levels is not minimally acceptable.
• Mouser v. HHS, 32 MSPR 543 (1987). An agency's use of numeric performance indicators to give content to an appellant's performance standards, thus providing a more objective method for evaluating the appellant's performance, does not constitute a change in the standard. Even if it did constitute a change, an agency may modify the quality and quantity of the performance required of an employee as long as it does so according to a reasonable standard and makes the employee aware of the modifications.
• Jimenez-Howe v. Labor, 35 MSPR 202 (1987). An agency may define the minimum standard for retention at the beginning of an opportunity to improve without incurring an obligation to initiate a new appraisal period. The Board found that the communication of the minimum standard for retention did not involve a change in the elements or standards related to the position, but rather a further definition of the standard by setting percentage requirements at the minimally satisfactory level.
• Callaway v. Army, 23 MSPR 592 (1984). While the use of absolute performance standards generally constitutes an abuse of discretion, the use of absolute standards may be necessary where death, injury, breach of security, or great monetary loss could result from a single failure to meet the performance standard measuring performance of a critical element.
• Shuman v. Treasury, 23 MSPR 620 (1984). Agencies do not abuse their discretion in developing standards which lack specific quantitative criteria for positions involving a fairly broad range of duties which apparently vary in complexity and significance. The 4302(b) objectivity requirement must be met only to the maximum extent feasible. The Board also held that a performance standard may consist of more than one component and an employee may be required to perform acceptably with respect to each of the components of the standard. If the action is based on a component of an standard, the agency must prove by substantial evidence that the appellant's performance warranted an unacceptable rating on the element as a whole.
• Seay v. HHS, 24 MSPR 688 (1984). Standards containing such terms as usually, often, and generally rather than numerical requirements are not considered an abuse of discretion when the position involves a broad range of duties which vary in complexity and significance.
• James v. VA, 27 MSPR 124 (1985). If an employee fails to meet a valid absolute standard (i.e., that which is necessary because of the possibility of death, injury, etc.), the agency may take the action under Chapter 75 if it believes it cannot safely provide a reasonable opportunity to demonstrate acceptable performance. Where an agency elects to proceed under Chapter 43 and provides the employee with an opportunity to improve, it cannot then demote or remove an employee who has satisfactorily performed during the improvement period for the errors which preceded and precipitated the warning notice and improvement period.
• Komara v. VA, 28 MSPR 239 (1985). When an agency uses absolute standards to measure the performance of employees whose unacceptable performance could result in death or injury, the agency must tailor the standard to apply only to situations where a single failure to meet the standard could result in death or injury; the standard may not merely encompass such situations along with other non-life threatening situations.
• Stubblefield v. Commerce, 28 MSPR 572 (1985). Research positions are not susceptible to a mechanical, judgment-free rating system, and performance standards may allow for subjective judgment by supervisor. (Performance standards for research positions may also include the judgment of fellow scientists regarding appellant's performance.) In research positions, a standard is not considered absolute merely because it requires that a paper or a report be of high quality and be handed in on time (even though a single failure could result in an unsatisfactory rating), when the standard can be exceeded by exemplary work and does not place an arbitrary or unreasonable responsibility on the employee.
• Wilson v. HHS, 770 F.2d. 1048 (Fed. Cir. 1985). The Federal Circuit held that while there is no requirement that performance standards contain quantitative criteria, they must be sufficiently precise and specific as to invoke a general consensus as to their meaning and content. Performance standards must be reasonable, sufficient in the circumstances to permit accurate measurements of the employee's performance, and adequate to inform the employee of what is necessary to achieve a satisfactory or acceptable rating.
• Baker v. DLA 25 MSPR 614 (1985), aff'd, 282 F.d. 1579 (Fed.Cir. 1986). When reviewing the objectivity of an appellant's performance standards, MSPB should consider not only the actual language in the standards, but also evidence presented by the agency regarding written instructions to appellant informing him of specific deficiencies in his work (and of methods by which he can improve his performance), memoranda describing what constitutes unacceptable performance, and agency responses to the employees questions about his performance. Performance in a supervisory position cannot be measured by a mechanical, judgment-free rating.
• Williams v. Treasury, 35 MSPR 432 (1987). Performance standard for Data Transcriber found to be invalid because it did not meet the requirement of 5 U S C 4302(b)(1) to accurately provide an evaluation of job performance. MSPB found that the quantitative standard requiring a certain number of keystrokes per hour failed to allow for variables such as availability of machine work and assignment of non-machine duties.
• Eibel v. Navy, 857 F.d. 1439 (Fed.Cir. 1988). The Federal Circuit indicated that performance standards are invalid when they define minimally acceptable performance in terms which actually describe unacceptable performance. Such standards neither provide an accurate measurement of the employee's level of achievement nor reasonably inform the employee what is acceptable performance. In this case, the standards for minimally acceptable performance stated, for example: "no agency ... is developed, and no more that six articles are written for the base newspaper." Thus the employee could meet such standards by developing no agenda and writing no articles at all. The Court said that as experience is gained in writing standards, it expects agencies to revise and update their performance standards. Noting that in Wilson it had found similar standards to be invalid, the Court stated that it is the responsibility of every agency to review its own performance standards for comparable defects and to change them appropriately. Otherwise, agency actions based on performance standards which do not meet the requirement of 5 U SC 4302 (b)(1) will fail.

Opportunity Period

• Wilson v. Navy, 24 MSPR 583 (1984). The agency need only prove unacceptable performance during (and not prior to) the opportunity to improve in order to show that the employee's performance is unacceptable for purposes of taking action under Chapter 43.
• Shuman v. Treasury, 23 MSPR 620 (1984). An employee who is not given adequate instructions regarding the manner in which he/she is expected to perform the duties of the position has not been provided with an adequate opportunity to demonstrate acceptable performance.

Evidence of Unacceptable Performance

• Shuman v. Treasury, 23 MSPR 620 (1984). In cases in which the agency has demoted or removed an employee for unacceptable performance on fewer than all components of a performance standard, the agency must present substantial evidence that performance warranted an unacceptable rating on the critical element as a whole. Evidence should demonstrate that employee knew or should have known the significance of the component or components at issue, in addition to demonstrating that deficiencies were significant enough to justify the action taken.
• Player v. VA, 32 MSPR 448 (1987). The Board finds that while an agency is not required to provide an accounting of every assignment to successfully pursue a performance-based action with respect to a critical element with a percentage requirement, the agency must, at minimum, establish some methodology for selecting the examples of alleged unacceptable performance so that a reasonable person might conclude that the employee's performance fell below the position's requirements.