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How much does a performance review matter during discipline?

On Behalf of | Jan 24, 2022 | Federal Employment Law

As a federal employee, you have the right to respond to any proposed discipline. This right exists largely as a safeguard against workplace discrimination. It gives you the chance to point out the flaws in a manager’s argument. For example, if you suddenly find yourself facing discipline that targets your poor performance, you might point to your record of stellar performance reviews.

But how much does your track record matter? How much might your performance reviews affect the proposed discipline? As one recent case illustrates, the answers vary with the circumstances.

Performance reviews may debunk employers’ cover stories

The case in question was that of a passport specialist who faced removal after several behavioral concerns. The case against him cited inappropriate sexual comments, drinking on the job and 11 specific failures to follow instructions. After his removal, the worker appealed to the Merit Systems Protection Board (MSPB), which upheld his removal. He appealed again, to the United States Court of Appeals for the Federal Circuit. His appeal argued that the MSPB had failed to account for his history of satisfactory performance reviews.

There was good reason for the court to hear his argument. Managers and agencies often invent false grounds for dismissal to cover up their discrimination. Instead of saying they fired someone illegally because the person was female, Black, gay or disabled, they say something like the person wasn’t a team player or failed to show up on time after receiving several prior warnings. Of course, those warnings might have been part of a plan to cover up the discriminatory firing, but performance reviews can often expose these cover stories. Your history of good reviews may cast doubts on any claim that you deserved to go because of your work.

However, in the case of the passport specialist, the MSPB had said his performance reviews were immaterial. His dismissal was for misconduct, not performance. The Court of Appeals disagreed. It noted, “Issues of performance and misconduct may overlap.” The MSPB should have considered the performance reviews.

Performance reviews aren’t everything

Despite its ruling, the Court of Appeals chose not to reverse the MSPB’s decision. This was because the passport specialist had failed to show the MSPB’s failures had caused him any harm. Yes, the MSPB had upheld his removal, but the Court of Appeals said the passport specialist and his attorney failed to prove that the MSPB’s oversight had caused him any harm.

Effectively, the burden of proof switched sides. It became the passport specialist’s burden to prove that a proper consideration of his performance reviews might have changed his discipline. He would have needed to show that his performance reviews had been solid enough to cancel his removal or soften it to another form of discipline. The Court of Appeals said he had failed to do this and allowed his removal to stand.

Make sure your performance receives the weight it deserves

The takeaway from the passport specialist’s recent appeal is twofold. First, you cannot expect a history of average to moderately good performance reviews to “fix” multiple forms of misconduct. Second, if you’re facing proposed discipline, you want to bring your good performance reviews into the picture as soon as possible.

The best time to craft a careful response is at the very beginning. By the time you move to appeals, you have little or no ability to add new materials for consideration. You want your response, and any accompanying legal defense, to present all the important facts as soon as possible.


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