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

Willena Johnson v. Department of Interior, SE0432990061-I-1, November 30, 2000.

The Board finds that generic performance standards that do not allow for error, even as amended in the PIP notice, are impermissibly absolute and thus invalid.

The appellant was removed based on unacceptable performance in three critical elements. In a prehearing conference the administrative judge (AJ) raised the issue of whether the agency's generic performance standards were valid and ordered the agency to present evidence and argument on the issue. After receiving the agency's arguments, the AJ canceled the hearing and reversed the appellant's removal, finding that the agency's performance standards were invalid because they were impermissibly vague and subjective.

The full Board disagreed with the AJ that the generic standards were vague and subjective, but instead found that two of the standards, even as amended by the PIP notice, were impermissibly absolute and thus invalid. Examples of the standards at issue: "Written work is clear, relevant, concise, well organized . . . ," "Completes work in accordance with established deadlines," and "Plans, organizes, and executes work logically." The agency argued in its PFR that the standards were supplemented and fleshed out in the PIP notice and in conversations with the supervisor, and that if the AJ had held a hearing, it would have shown that it had done so. The Board found this argument to be without merit, since the AJ had provided the agency with an opportunity to present arguments supporting its position that the standards were valid. The Board found one of appellant's standards, "No more than 4 validated customer complaints will be allowed," to be valid, and thus remanded the case for further adjudication.

The standards in this case were generic performance standards developed under the agency's two-tier system. The Board noted, however, that its conclusion as to the validity of the standards was limited to the specific standards at issue and it was not reaching the question of the general validity of all generic performance standards.

The Board in this case referred in great detail to OPM's guidance in A Handbook for Measuring Employee Performance. The Board failed to mention that the portion of the handbook it cited in support of its position in this case was merely warning agencies about what the MSPB and the courts considered to be invalid standards, not what OPM considered to be invalid. Also, this case involved an agency with a two-tier performance system; but a similar analysis was seen in Bronfman v. GSA, 40 MSPR 184 (1989), which did not involve a two-tier system, so its importance is not limited to agencies with pass-fail systems. Agencies with two- and three-level systems should continue to add the words "generally," "routinely," etc. to their standards at the "pass" or "fully successful" level to avoid MSPB reversals. Agencies should also submit evidence early on in the case about their efforts to flesh out standards during the PIP.

Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.

Other questions or comments may be mailed to the U.S. Office of Personnel Management, Room 7H28, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000. You may call us at (202) 606-2930; fax (202) 606-2613; or email lmr@opm.gov.