We receive many inquiries surrounding a performance rating affecting a federal employee. Some inquiries are ambiguous (i.e., “can they rate me an Excellent?”) and some are very specific (i.e., “what are the minimum number of days of observed performance required?”). Our consultation is very fact dependent on variety of factors including any specific Master Agreement, agency regulations, supplemental local Agreements with the union, your appointment authority, past practice, EEO and MSPB case law, local policies, etc…. Therefore, we cannot address every possible scenario. Instead, this post will provide broad information based on the subjects of inquiries we received.
Supervisors have broad discretion in arriving at your end of year performance rating. If anyone else tells you different, they are wrong. It is simply impossible to remove discretion (subjectiveness) entirely. Of course, this discretion is not absolute and is subject to appeal, often successfully, through a variety of means and methods (EEO complaints predominantly). Simply put, a performance appraisal is intrinsic to management’s right to both direct and assign work. However, a number of factors must be applied including adequate performance standards, proper notice of performance standards and changes to performance standards, application of negotiated agreements, opportunities to approve, proper classification, minimum number of days of demonstrated performance, and other factors. See, 5 CFR 430.203. It is worth noting the more complex the occupation, the more subjective the rating may be. This is particularly true in professional and technical fields that involve heavy writing and analysis. Also, some agencies, such as the Department of Veterans Affairs manage performance based actions differently and often in an expedited manner under unique legal authorities ( Title 38 USC 714 in this case).
Your performance rating can be subject to a second level review. A second level reviewer has the ability to “confirm,” “approve,” or otherwise influence or alter your rating and need not have directly observed your performance directly. You will need to consult your Master Agreement or agency regulations for additional information.
There is no prohibition against “absolute performance standards.” Performance standards leading to an annual performance rating simply need to be “reasonable, based on objective criteria, and communicated to the employee in advance.”See, Guillebeau v. Department of the Navy, 104 LRP 13104 , 362 F.3d 1329 (Fed. Cir. 2004);See also, Dobson v. Department of the Navy, 108 LRP 41253 (Fed. Cir. 2008,unpublished). Agencies are not required to include specific indicators of quantity, quality, and timeliness to evaluate work. The fact performance standards call for a certain amount of subjective judgment on the part of the employee’s supervisor does not automatically invalidate it. See, Henderson v. National Aeronautics and Space Administration, 111 LRP 7619 , 116 MSPR 96 (MSPB 2011). Also, agencies are free to establish performance standards as high as it thinks appropriate provided such standards are objective and meet the other the requirements of 5 USC 4302 (b)(1). See, Sanders v. Social Security Administration, 110 LRP 43177 , 114 MSPR 487 (MSPB 2010).
You can “drop” from an Outstanding Rating to a Fully Successful performance rating quickly. An issued prior rating does not constitute an obligation to issue that same rating the following year. We recommend managers conduct interim performance counseling if this is such a case, especially at defined progress reviews. However, there is no requirement in that regard.
The agency can remove you based on performance (Chapter 43 action). However, the agency must prove your performance standards are valid. See, Van Prichard v. Department of Defense, 111 LRP 70305 , 117 MSPR 88 (MSPB 2011); See also, Diprizio v. Department of Transportation, 101 FMSR 5168 , 88 MSPR 73 (MSPB 2001). Under some special legal authorities such as Title 38 USC 714, processes are expedited (as little as 30 days generally) and only require advance notice to the employee without the need for a Performance Improvement Plan (PIP).
You can refuse to sign your annual performance evaluation. However, your refusal to sign really does not matter, nor does it affect anything. You are better off asking for reconsideration.
You may appeal your annual performance rating in a variety of forums including EEO, negotiated grievance procedure, or an administrative grievance procedure. Consult your Master Agreement (if you are a bargaining unit employee) and/or agency regulations. Typically, the first step (and most advisable) is to ask for reconsideration and introducing information regarding your performance your supervisor may not have considered at the time he/she issued the rating. Just understand, any appeal of your rating is long hard road and you bear the burden of proof. In our opinion, the EEO route is typically the most productive and provides wide attitude for settlement.
You may, or may not, receive a performance related award; however, there is no entitlement. Some agencies specifically link performance awards to ratings whereas other agencies do not. Some agencies may elect to choose to reward only employees rated Outstanding while others may even award Fully Successful employees. There is no requirement you receive a performance related cash award based on your rating. There is also no requirement your award amount be the same as another employee who received the same rating. Some agencies provide full discretion to first line supervisors, some agencies require award amounts correlate to complexity of position (grade based), some agencies provide flat rate award amounts based on rating (regardless of grade), still others may provide an award based on a percentage of base salary or even a complex formula based on base salary and years of service.
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