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NOVA Legal Beat: Unfair Unsatisfactory Rating?

By ARLnow.com - ARLNow.com

Wednesday - 12/18/2013, 2:30pm  ET

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Can my agency give me an unsatisfactory performance rating because I messed up on one thing during the entire year?

A. A federal agency’s one-strike-you’re-out policy, when applied to a performance appraisal system, is generally known as an “absolute performance standard.” The Merit Systems Protection Board (MSPB), as it stated in Juanita M. Blain v. Department of Veterans Affairs (1988), has traditionally viewed absolute performance standards as providing that “only one incident of poor performance would result in an unsatisfactory rating on a job element.”

Up until about a decade ago, the Board had believed statute prohibited absolute performance standards, except in cases “where death, injury, breach of security, or great monetary loss could result from a single failure to meet the performance standard measuring performance of a single critical element.” That changed when its appellate court, the U.S. Court of Appeals for the Federal Circuit, in Cynthia A. Guillebeau v. Department of the Navy (2004) ruled that statute does not actually prohibit the adoption of such high standards.

Federal law calls for performance appraisal systems that “to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria… related to the job in question for each employee or position under the system.”

Even though the law does not ban absolute performance standards, the Federal Circuit pointed out that such standards must be “must be reasonable, based on objective criteria, and communicated to the employee in advance.” An example of an unreasonable performance standard identified by the court was a standard “permitting so few errors in pulling medical records from files that, based upon the number of records the employee is required to pull, the employee must be at least 99.91% accurate.”

Federal employees who believe their agency’s performance appraisal system includes unreasonable performance standards should immediately contact a federal employment law attorney who can help them file a grievance or complaint challenging the validity of their performance ratings and standards.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.