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Challenging a Performance Improvement Plan

A Not Fully Successful Rating and Performance Improvement Plans

Poor performance is a legitimate, non-discriminatory reason for an Agency to propose a reassignment, demotion or removal from federal service. When your performance rating falls below the acceptable standard for your position, the Agency must provide you with a meaningful opportunity to improve before they can propose an adverse action based on poor performance. In order to meet this obligation the Agency will implement a Performance Improvement Plan or Performance Improvement Period (PIP). A PIP is a commonly used administrative tool to provide an employee with notice that performance is not fully successful. The PIP will outline a plan for improvement in the critical elements, sometimes referred to as core elements that were deficient. Often times, a supervisor will sign the PIP and will outline various training opportunities for an employee.

A PIP, with limited exception, is a prerequisite to issuing a notice of proposed removal for deficient performance. The PIP is designed to provide a federal employee with a meaningful opportunity to improve. In order for the opportunity to improve to be "meaningful" the employee must be made aware of several things when being placed on a PIP. First, the Agency must make it clear to the employee that they have observed performance deficiencies in critical elements of that employee's position. The employee must then be told specifically what they must do in order to achieve a successful rating; the standards by which their improvement will be evaluated or measured; what guidance, training or assistance management is willing to provide; and the consequences if the employee fails to improve at the conclusion of the PIP. Additionally, the employee should be made aware of the length of the PIP, including the start and end date or any extensions thereof. Assuming you successfully improve under a PIP you will be notified by the Agency and should resume employment without further action.

In the event that the Agency determines that you failed to improve or correct the performance deficiencies identified in the PIP, it is likely that your employing federal agency will propose your removal from federal service. A removal from federal service is an independently appealable action that you can appeal to the Merit Systems Protection Board, also known as the MSPB. A removal from federal service for poor performance is usually brought under Chapter 43 of the United States Code. However, it is possible to remove an employee from federal service under Chapter 75, which is more commonly used in instances of misconduct. Regardless of whether or not you feel you truly failed to improve under the PIP, there are a variety of procedural mistakes the Agency could have made in the implementation or execution of your PIP and/or in the issuance of the notice of proposed action. An attorney who is experienced practicing before the MSPB is in the best position to help you identify procedural errors that may have been made.