U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Joseph Diprizio v. Department of Transportation, SE0432980331-I-1, March 19, 2001

An agency is not prohibited from using more than one document to set forth the performance standards against which an employee's performance will be rated.

The appellant was removed based on unacceptable performance in two critical elements. The removal was reversed by the administrative judge who found the appellant's performance standard (which applied to both elements) to be invalid because it was vague and impermissibly subjective.

The full Board analyzed the adequacy of the appellant's generic performance standard. The standard at the "needs improvement" level, which is the retention level in this case, stated "this level of performance only meets the minimum requirements with close supervision. All assignments are completed but may require the assistance of the supervisor and/or peers. Organizational goals and objectives are met only as a result of close supervision." The Board agreed with the AJ that, standing alone, the generic performance standard in this case is not sufficiently precise and specific as to invoke a general consensus as to its meaning and content. However, the Board said that an agency is not prohibited from using more than one document to set forth the performance standards against which an employee's performance will be rated. The Board found that, in this case, reading the generic performance standards in conjunction with the appellant's critical elements renders them less vague. It also said that any lack of specificity in the standards was cured by the agency's providing the appellant with clear guidance during the PIP as to what was expected of him. The Board thus remanded the case to the AJ for a hearing on the merits.

This decision applies well-established case law that says that agencies can flesh out and give content to performance standards when they put an employee on a PIP. What is not clear is whether the Board will apply this holding to "absolute" and "backwards" standards as well. Full Board decisions are vague and initial decisions are mixed on this issue. OPM hopes that the Board will make it clear that it will allow agencies to give content to these types of standards as well.