Cynthia A. Guillebeau v. Department of Navy, AT-0432-00-0542-I-2, March 28, 2003

An absolute standard may be valid where the employee is aware the standard is not applied in an absolute manner.

The appellant worked as an Engineer, ND-4 (equivalent to a GS-13) for an OPM-approved demonstration project. The agency issued her a notice of unsatisfactory work performance and enclosed a performance plan to assist her in improving her performance. The agency removed her on the basis that, during the performance plan period, she had managed to complete only one of five specific tasks. On appeal, the appellant challenged the procedures the agency used to effect her removal. She also claimed the agency's action was the result of discrimination based on her disability, which was obsessive compulsive disorder. The administrative judge (AJ) rejected the appellant's discrimination claim, but reversed the agency's action after considering the testimony of the appellant's supervisor who stated that in order for the appellant to successfully complete for performance plan, she had to meet her four quality standards with no errors. Based on this testimony, the administrative judge found the performance standards were absolute and, as such, invalid. The agency appealed, and the Board found the agency properly removed the appellant for failing to complete the majority of the projects assigned to her.

The MSPB noted there was a question as to whether the concept of absolute standards applied to this case, because OPM had specifically waived 5 U.S.C. § 4303(b)(1)(A)(ii), the requirement that an agency establish critical elements. Regardless, the MSPB said, a standard may be valid where the employee is aware that it is not applied in an absolute manner. Here, the agency did not apply the four quality standards to the appellant's performance in an absolute manner. That is, it did not deem her performance unacceptable because she made a single error in that regard that justified her removal, the MSPB said. The agency found that despite the extensions and considerable agency assistance, the appellant failed to complete the majority of projects she was tasked to complete. The MSPB found the AJ erred in implicitly finding that the agency's action was based on the errors in the quality of the appellant's work, and ruled instead that the agency properly removed the appellant for failing to complete the majority of the projects assigned to her.

Although the action involved an OPM-approved demonstration project, the fact that it was a demonstration project was not crucial to the outcome of the case. While the agency removal action was initially reversed by the administrative judge due to an absolute standard, the agency's action was actually based on unsatisfactory performance as it related to completing projects. When the Board reviewed the facts of the case, it noted that the agency had been granted a waiver from the requirement to establish critical elements against which performance could be measured. As the Board pointed out in the Guillebeau decision, "even if the concept (of an absolute standard) is applicable, however, the Board has held that an absolute standard may be valid where the employee is aware that the standard is not applied in an absolute manner." Sullivan v. Department of Navy, 44 MSPR 646, 652 (1990). The appellant was removed for failing to complete the majority of projects assigned to her, despite being given several extensions to her performance plan. The agency did not find her performance unacceptable because she made a single error that justified her removal. Rather, the agency found, and the appellant did not deny, that she simply failed to complete the assigned work during the period provided.