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Three things we learned from a recent MPSB opinion

On Behalf of | Feb 21, 2023 | MSPB

As a federal employee, you enjoy certain legal protections. These exist to ensure that others will judge you based on your performance. The law prevents agencies from taking action against you based on your race, age, gender, religion, disability or any other protected status.

However, the existence of your legal protections and the matter of enforcing those protections are two different things. The law often features numerous ins and outs. There are exceptions and exceptions to the exceptions. The history of prior judgments plays a role, and a recent opinion from the Merit Systems Protection Board (MSPB) gives us a few lessons about just how complicated it can sometimes be to stand up for your rights.

The engineer and the Air Force

In January, the MSPB provided an opinion and order on the case of Chenshiang D. Lin v. Department of the Air Force. Lin held the position of Senior General Engineer before the Air Force said he wasn’t meeting standards at work. After his poor review, the Air Force placed him on an improvement plan. In a subsequent review, the Air Force again found Lin below standards and let him go. Lin appealed the decision. He also claimed the Air Force had discriminated against him due to his age.

At Lin’s hearing, the administrative law judge (ALJ) sided with the Air Force. Lin filed a petition for review. On review, the MSPB vacated the ALJ’s judgement and remanded the case for further judgment.

Importantly, the MSPB’s opinion offers us a look at how the Board views such cases. Three things stand out.

Different rules apply

The ALJ had to interpret the standards of Lin’s employment because he wasn’t employed according to Title 5. Even though Title 5 applies to most government employees, the laboratory where Lin worked was a “demonstration project.”

The Office of Personnel Management (OPM) can work with other agencies and use these demonstration projects to test various personnel practices that differ from the Title 5 rules. When the ALJ considered the five points of proof agencies need to show for performance-based removals, the ALJ had to interpret those points according to the terms of the demonstration project.

What is a reasonable amount of time for improvement?

The ALJ failed to determine whether Lin had had reasonable time to improve his performance. The Air Force had initially placed Lin on a 120-day improvement plan that started in January 2013. The Air Force later found him lacking in January 2015, when it considered his performance from October 2013 to September 2014.

The Board noted that agencies often see employees who improve, then fall back to substandard performance levels. The term is “roller coaster employees.” But the Board noted that agency never provided evidence that Lin had had a reasonable chance to improve during the 120-day improvement period. It cited his 29-year record and the fact that English wasn’t his primary language.

The ALJ had erred by accepting the agency’s review of Lin’s performance from October 2013 to September 2014 without considering his performance during the improvement period.

Life happens, even in the justice system

Two real-world events further complicated Lin’s case.

  • The first was the fact the ALJ who had reviewed Lin’s case was no longer employed by the Board. This meant that the Board would have to assign the case to a new ALJ. In turn, that ALJ would need to hear witnesses and testimony all over. As the Board noted, the ALJ would need to hear these in order to make credibility determinations.
  • The second twist was a ruling that came out while Lin’s case was in review. The U.S. Court of Appeals for the Federal Circuit said that agencies needed to prove one more thing in support of performance-based adverse actions. It said that chapter 43 demanded agencies can only act against employees who show continued unacceptable performance if they first have “an opportunity to demonstrate acceptable performance.” This directly influences the question of whether the ALJ had properly evaluated Lin’s improvement during the 120-day improvement period.

So, in Lin’s case, it isn’t just the law that matters. It’s also the timing.

The details matter

If there’s any one overarching lesson to take away from this recent case, it’s that federal employment law can be tricky. The laws exist. You have rights. However, if you don’t have a skilled attorney on your side, it can be hard to uphold those rights.

You have to understand the ins and outs of the law. You have to know your precedent. You have to stay up to date with changes and anticipate future arguments. In short, the details matter, and an experienced ally is often the key to ensuring that agencies don’t trample all over you.


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