What to know when appealing a performance rating


Over the next few months, many federal employees will receive performance ratings. Some may believe their ratings to be unreasonably low.

What can be done? There is a review process for most employees, but that process generally functions within the agency’s control (with exceptions for bargaining unit employees and successful equal employment opportunity complainants) and is often criticized as being unfriendly to complaining employees. Nonetheless, an appeal might be successful if an employee is careful, thorough and able to strike the right notes.

Appeals take numerous forms. Following is a summary of different groups of employees and how the processes may differ.

Senior executives

Senior executives have no right to grieve a performance rating. Instead, they may request a higher-level review and may submit a response to the agency’s performance review board (PRB), which must consider the comments in making a recommendation to the agency about the final rating.

A senior executive who suspects an unfair low rating is advised to read the procedure, including what is likely to be a five-day or shorter time limit on comments to the PRB. The work on the PRB submission should start well before the rating is received.

Bargaining unit employees

Employees who are in a unit represented by a union have a negotiated collective bargaining agreement with a grievance procedure, and likely a specific procedure for grieving performance ratings. Read the agreement and start working with your union shop steward if you suspect trouble on the horizon.

Unions may appeal an unfair rating to an arbitrator if the employee and union are dissatisfied with the response in using the grievance procedure. Arbitration, however, is expensive, and a union is likely to use it for a performance rating only in significant cases. The threat of arbitration often makes management look carefully at the merits of the union’s arguments.

Non-bargaining unit employees

Employees not covered by union representation have an administrative grievance procedure by which they can complain about a low rating. Read the procedure, which should be available from human resources or the agency’s intranet. The procedure has short deadlines and explains to whom and how the grievance is filed and what appeals there are in the agency of the initial decisions. Some agencies have special procedures for grieving performance appraisals. There is no appeal outside the agency from an adverse decision against the employee on a performance rating grievance.

EEO violations/whistle-blower reprisal

An employee who believes a lowered rating is the result of illegal discrimination or reprisal may use the EEO system; an employee who believes the performance rating is for whistle-blower reprisal or another prohibited personnel practice may file with the Office of Special Counsel.

One of the difficulties with either of these methods is the amount of time the review process takes. Another is that the employee claiming discrimination or reprisal bears the burden of proof. The obvious advantage is that outside pressure can be brought on an otherwise stubborn agency to fairly review the performance rating.

Several cautions about using both EEO and a grievance procedure: Most grievance procedures have a provision to stop processing the grievance if an EEO complaint is filed. Federal labor law requires those covered by a negotiated grievance procedure to choose between the grievance procedure and EEO. Finally, the 45-day time limit for contacting an EEO counselor to complain in the EEO process starts from the day the employee receives the rating, not from the date of a grievance decision.

Focus your grievance on specific examples of how your performance met or exceeded standards. Include evidence of your compliance with expectations set by your supervisor. General complaints about mistreatment or unfairness are unlikely to be effective.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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