It’s no secret that a performance improvement plan (PIP) is sometimes the first step in the removal process. That’s because it’s easier to remove a federal employee for performance than for misconduct. For conduct-based removals, the agency must present “preponderant evidence” that the employee engaged in misconduct. In other words, the agency must have enough evidence to convince any reasonable person that it is more likely than not that the employee engaged in misconduct.
On the other hand, performance-based removals require only substantial evidence. “Substantial” sounds like a lot, but that’s not what it means in federal employment cases. Substantial evidence is whatever evidence might be enough to convince a reasonable person that the employee’s performance was unsuccessful, even if other reasonable people disagree. Basically, all the agency needs is some evidence that performance wasn’t up to snuff. In most cases, that isn’t hard to do.
Critical elements of performance matter.
Defeating a proposed disciplinary action based on performance is an uphill battle, but it can be done; especially when a supervisor makes mistakes in drafting the PIP. Under the federal regulations, a PIP must be based on the critical elements of an employee’s performance. The employee’s performance plan should list the performance elements and identify the ones that are critical. As a result, an agency can’t remove an employee for failing a PIP that isn’t based on critical elements of performance.
It’s possible to beat a PIP.
We’ve encountered this issue before. A federal employee hired our firm after receiving a proposed removal for failing a PIP. We reviewed the client’s documents and discovered that the PIP violated the federal regulations. The agency tried to remove the employee for failing to perform duties that weren’t related to the critical elements listed in the performance plan. Based on our written response and oral reply, the agency rescinded both the PIP and the proposed removal.
How to respond to a performance improvement plan
Here are a few things you can do if you get a PIP:
- Respond: There isn’t a formal opportunity to rebut or respond to a PIP. However, you can send a respectful email to your supervisor pointing out specific examples of how your performance is successful.
- Get started: Start on the PIP assignments right away. Email your supervisor if you have questions about the assignments or about resources you need to be successful.
- Take notes: Your supervisor is required to help you meet the PIP requirements. Generally, this means your supervisor must meet with you on a regular basis during the PIP period. Keep track of the dates of these meetings and if your supervisor cancels. Actively engage during the meetings by asking questions and providing status updates. Take notes about what you and your supervisor discuss, and send a follow-up email to your supervisor after each meeting.
How can an attorney help me with a PIP?
An attorney can help you draft and submit a response to a PIP, file a grievance or EEO complaint if the PIP is discriminatory, respond to a proposed removal for performance, or appeal a removal before the Merit Systems Protection Board (MSPB).
If you got a bad performance review or were put on a PIP, call us today. Our attorneys can review the PIP to determine if it is legally deficient and advise you about possible legal action. We represent federal employees around the world in connection with proposed discipline, MSPB appeals, EEO complaints, and other employment matters.
This post was originally published on February 22, 2019, and was updated on November 10, 2020.