Will Your Post-PIP Dismissal Survive Judicial Review? - Federal Circuit
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Will Your Post-PIP Dismissal Survive Judicial Review?

Dismissing a federal employee is no simple task.

This week, an unpublished Federal Circuit Court of Appeals opinion demonstrates how one federal agency took the necessary steps for its termination decision to withstand judicial review.

The plaintiff, Tonia Noble, began working in the U.S. Attorney's Office in 2007. Two years later, her supervisor gave her notice that her job performance was unacceptable and, as a result, placed her on a 90-day performance improvement plan (PIP). Under the PIP, Noble was required to demonstrate "successful" performance in several critical elements of her performance work plan (Work Plan).

Following the 90-day PIP period, the agency made the decision to remove Noble for unacceptable performance. The Merit Systems Protection Board (Board) affirmed the agency's action, finding that the agency had established by substantial evidence that it had provided Noble with valid performance standards and a reasonable opportunity to improve.

The Federal Circuit Court of Appeals reviewed and affirmed the Board's decision.

On appeal, Noble first argued that the agency improperly terminated her based on an "absolute" performance standard, under which a single incident of poor performance will result in an unsatisfactory rating on a critical element. The Federal Circuit noted that, while an agency may apply an absolute standard, Noble was actually removed for 15 charged instances of deficient performance, 12 of which the AJ determined the agency had proved.

Next, Noble claimed the PIP objectives were not reasonably communicated. Again, the appellate court disagreed, noting that the PIP letter Noble received setting forth the relevant elements of the Work Plan gave nine examples of past unacceptable performance, and directions as to what Noble needed to do to improve her performance.

Finally, Noble argued that she was not given a reasonable opportunity to improve her performance, based on her lack of sufficient experience or training to succeed, and additional duties during the PIP period.

With regard to the training element of her complaint, the appellate court noted that the agency had denied Noble's request to attend a training seminar on legal citation and research, but that's because the bulk of her responsibilities were unrelated to legal citation and research. Furthermore, Noble's performance of the additional duties was unrelated to her termination.

While it's not binding, this case can be instructive for both agencies and federal employees negotiating the PIP process.

Related Resources:

  • Can a Federal Judge Get a COLA? (FindLaw's Federal Circuit Blog)
  • Leatherbury v. Department of the Army (FindLaw's CaseLaw)
  • Court Limits Federal Employees' Security Clearance Appeals (FindLaw's Federal Circuit Blog)