Fear the Mumps, Not the PIPs

By Dan Gephart, April 10, 2019

Guess who made a long visit to my alma mater this year?

The Mumps. No, the obscure 1970s kitschy New York punk-pop band known for its outrageous live shows didn’t re-form for Temple University’s Spring Fling. I’m talking about the contagious, inflammation-spreading, gland-swelling, deafness-causing, we-already-had-it-eradicated mumps. And not just one or two mumps. There were more than 115 cases of the easily prevented virus on campus.

The anti-vaccination movement is as strong as ever. Meanwhile, the Flat Earth Society, which boasts thousands of dues-paying members, and climate change denial groups are just two of many thriving communities that take pride in turning their back on science, history, and, sometimes, facts.

Those of us who toil in and around the federal employment world know that we are not immune to overlooking the simple truth.

After all, that’s the only explanation for why there are still federal supervisors who would rather ignore poor performance than put an employee on a performance improvement plan, or as we now call it a FELTG – the demonstration period (DP).

Folks, this ain’t rocket science. This ain’t even whatever science makes those volcanoes erupt baking soda at junior high school science fairs.

The DP – or PIP, if you still call it that, or the ODAP, OP, or DO – is not even an adverse action that would render an employee aggrieved. It’s just a preliminary step to taking a personnel action. Lopez v. Agriculture, EEOC No. 01A04897 (2000), Jackson v. CIA, EEOC No. 059311779 (1994).

For this article, we’re focusing on this preliminary step that too many supervisors fear. Let’s assume that your agency has established critical elements under an OPM-approved plan, and that you have communicated those critical elements to the employee. And now, the employee is failing to meet those on one or more of those elements. Do NOT ignore the poor performance. Just follow these three steps:

Step one: Notify the employee. In a letter or email, identify the critical element, or elements, at issue, and explain to the employee that his performance is at the unacceptable level. Reiterate, based on the performance plan, what exactly warrants a rating of unacceptable. Go ahead and attach that employee performance plan.

Inform the employee that you are putting him on a performance improvement plan (or, again, whatever your agency calls this “opportunity” period), and that if he fails to raise his level of performance during the DP, you will initiate the steps that will lead to his removal. Identify specifically when the DP begins and ends. Clearly define for the employee what you will consider the “minimum retention level.”

Step two: Conduct the DP – and limit it to 30 days. There is no reason for a DP to go longer than 30 days. The MSPB has consistently affirmed that a 30-day DP satisfies an agency’s obligation to provide an employee with a reasonable opportunity to demonstrate acceptable performance. Lee v. EPA, 2010 MSPB 240; Towne v. Air Force, 2013 MSPB 81. In previous rulings, the Board has found that a DP as short as 17 days is OK. Bare v. DHHS, 30 MSPR 684 (1986). But don’t get too aggressive. Three days is not enough time, according to the Board. Hailey v. Agriculture, 26 MSPR 114 (1985).

And remember those Executive Orders President Trump issued last year? Well one of them requires agencies to limit the performance demonstration period “generally” to no more than 30 days.

As for conducting the DP, FELTG suggests you:

• Meet weekly with the employee.
• Give oral constructive criticism relative to the week’s work and the week’s assignments.
• Follow up with an email to the employee that day or the next. Restate the criticism, make assignments for the next week, and send a copy of the email to your advisor.

Step three: Make your decision. Has the employee met that “minimum retention level” that you defined in your notification letter? If so, issue a performance warning letter. In that letter, inform the employee that you will still take steps to initiate a removal if the employee’s performance dips back to unacceptable within a year of the first day of the DP.

If the employee fails the DP, then you have three options. You can reassign the employee, offer last rites, or proposal the removal. There is a time, place, and reason for all three of these options, and you can find out more from FELTG President Deborah Hopkins and Bill Wiley, FELTG Professor Emeritus when FELTG hosts MPSB Law Week in Dallas from June 3-7.

But for now, I need to leave. I have a doctor’s appointment, and those leeches aren’t going to attach themselves. Gephart@FELTG.com