Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
I was hired 16 years ago in full time civil service. I worked one position for 3 years, and was placed on a performance improvement plan (PIP). I was not able to meet the terms of the PIP, and instead faced removal. I was fortunate and was reassigned instead.
Twelve years later, I was reassigned back to the same position I was removed from 12 years prior, when I was unable to meet the terms of a PIP.
I am appealing the transfer. I believe being involuntarily reassigned back to a position I was removed from for failing to meet the terms of a PIP is retaliatory and a form of constructive discharge. Do these events violate any merit system principles, Office of Personnel Management practice or policy, or issues previously addressed in case law?
Your recent experience is not a violation of rules. You do, however, describe a senseless and insensitive act that you seem to have done a good job describing to others. Be careful, the common sense you describe is not an effective defense at the MSPB should you face a new PIP. Good luck!
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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Also note, subject employee had filed formal appeal for negative appraisal 12 months before the transfer, which was upheld at PPM level, and subsequently been subject to harassment and hostil work environement, in the 12 months following the appeal, cumulating in the transfer.
How can the experience described be shown to be consistant with Merit System Principals, specifically, 1,4 and 5? If not consistant, then isn’t it a violation of MSP’s and/or a PPP and actionable to OSC or MSBP?
(1) – An employee that failed to perform assigned duties and failed a PIP, could not be considered “qualified” or possing ability to perform these duties. The failure to meet the PIP, and agencies decision to transfer employee to perform substantially different duties, validated the fact that if after 3 years of OJT, formal training, and experience, employee was not able to perform assigned duties, further training/experience could not reasonably be expected result in acceptable performance.
(4) Agency officials demonstrated lack of integrity and concern for the public interest, by retialliating against employee, and allocating governement funds to pay someone to perform tasks it was documented they could not perform, and hindering the agencies mission by removing skilled personnel from positions where the employees ability to perform at a fully successful or exceptional level over the long term had been documented/demonstrated.
(5) Transferring someone back to a position they were removed from previously (for failure to meet the terms of a PIP), is not an efficient and effective use of the federal work force.
MERIT SYSTEM PRINCIPLES
From § 2301 (b) of title 5 D.S.C.
Federal personnel management should be implemented consistent with the following merit system principles:
(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity.
(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
(5) The Federal work force should be used efficiently and effectively.