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Three lessons from the reversal of an OPM employee’s removal

On Behalf of | Nov 1, 2022 | Firm News

As a federal employee you have the right to challenge any disciplinary actions your agency takes against you. Frequently, agencies can provide enough evidence to support their decisions. Other times, employees successfully point out the flaws in an agency’s argument. In these cases, the Merit Systems Protection Board (MSPB) may reduce or reverse their punishments.

That was the case recently for one employee with the Office of Personnel Management (OPM). The OPM had dismissed the woman for poor performance, but the MSPB recently reversed the removal. So, what can other federal employees learn from this case? The MSPB’s opinion provides two clear lessons for performance-based removals.

“Strategic goals” are not “critical elements” of a job

As the MSPB noted, the OPM had removed the woman for poor performance under 5 U.S.C. chapter 43. This is notable because chapter 43 sets strict standards for both the agency’s communication of expectations and the type of deficiency. Specifically, chapter 43 forces agencies to show that an employee performed poorly in a “critical element” of his or her job duties.

However, the MSPB noted that while the agency may have set clear “strategic goals” for the woman, it failed to prove the woman had performed unsatisfactorily in a critical element of her job. Instead, the MSPB noted the agency removed the woman after saying she failed to meet two out of her four strategic goals. But those goals were noncritical.

Indeed, the MSPB clarified that a critical element is “a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable.” In other words, the fact that failing to meet a single strategic goal wouldn’t result in an overall rating of unsatisfactory meant that strategic goal could not be a critical element.

Accordingly, by focusing on the strategic goals, the agency failed to satisfy the “critical element” standard for a chapter 43 action.

Agencies face a higher standard for discrimination

The woman’s performance wasn’t the only issue at stake in the MSPB’s review of her case. It also responded to her claim that the agency had discriminated against her because of her race and color.

Here, the MSPB said the administrative judge who had previously ruled on the woman’s case had viewed the matter of discrimination too narrowly. Specifically, the MSPB said that, when it comes to discrimination, the federal government holds agencies to a higher standard. Employees only need to show that their race or color (or other protected status) played some role as a “motivating factor” in the agency’s decision.

This leads to the question of how an employee might show that the agency took race or color into account. And the MSPB offered several examples of the evidence employees might use:

  • Direct evidence
  • “Suspicious timing, ambiguous statements […] or comments” from which someone might reasonably infer discriminatory intent
  • Evidence that the agency has invented a fictional reason for its action
  • Comparator evidence

Notably, the MSPB notes that employees do not need to provide all the above types of evidence and can certainly provide combinations of multiple types.

In the woman’s case, the MSPB notes the administrative judge said the woman’s coworker was not a proper comparator for the sake of comparator evidence. The judge based this decision on the fact that the woman and her coworker received different tasks from their shared supervisor. But the MSPB said this was a mistake. Instead, it cited three reasons the administrative judge should have looked at the woman’s co-worker as a comparator:

  • The co-worker held the same position
  • The co-worker received assignments from the same supervisor
  • The co-worker needed to meet the same general standards for performance

The MSPB did not explore the comparator evidence that might have supported the woman’s case. It sent the question back to the administrative judge for further review.

Employees need to understand how the rules apply

The third lesson we can take from this case is one we can reach after reviewing the other issues. The MSPB’s opinion shows how much the details matter in disciplinary reviews. These include the evidence as well as a proper understanding of the law.

Federal employees benefit from the protections afforded by multiple laws. However, it is often difficult for employees to invoke those protections on their own. The laws are often complicated and convoluted. They demand an understanding of things like “critical elements” and “comparators.” As a result, employees often need skilled, experienced representation to help them understand the rules and invoke their protections as fully as possible.


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