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 an employee for performance than for misconduct. Removals for misconduct require a “preponderance of the evidence.” 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, removals for performance require “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 when 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 which ones are critical. As a result, an agency can’t remove an employee for failing a PIP that wasn’t based on critical elements of performance.
It’s possible to beat a PIP.
We encountered this issue in a recent case. A federal employee hired our firm after receiving a proposed removal for failing a PIP. Shareholder Sara McDonough handled the case. She reviewed the client’s documents and discovered that the PIP violated the federal regulations. The agency was trying to remove the employee for failing to perform duties that were unrelated to the critical elements listed in the performance plan. Based on Sara’s written response and oral reply, the agency rescinded both the PIP and the proposed removal.
Contact us today.
If you were placed on a PIP, received a proposed removal, or are appealing a removal at the Merit Systems Protection Board (MSPB), we can help. Alan Lescht and Associates, P.C. has more than two decades of experience representing federal employees in all aspects of employment law. Call us at (202) 463-6036, or visit our website to schedule a consultation.