REMOVED CBP EMPLOYEE WINS FIVE YEARS OF BACK PAY PLUS
This employee worked as an Air Interdiction Agent with Customs and Border Protection (CBP) until the agency removed him for unacceptable performance in June 2019. However, the agency so botched the removal process that MSPB had no choice but to reinstate him with five years of back pay, interest, retroactive leave earnings, etc. Because the errors are mistakes other agencies make, union reps should familiarize themselves of these grounds in case they get a similar case.
ERROR #1- MSPB found that the employee’s alleged performance deficiencies did not relate to his primary job duties but concerned “collateral” vehicle officer duties. Moreover, these duties were not even referenced in the employee’s position description, but were assigned on a rotating basis at management’s discretion. MSPB wrote, “Thus, it is unclear whether such duties fall under a critical element of the appellant’s position.” In addition, the PIP did not clearly characterize these categories of job duties under any particular critical element.
Check the employee’s PD and performance standards to make sure each task an employee alleged performs unacceptably is actually a critical element.
ERROR #2- The agency’s removal proposal notice referenced different critical elements than were mentioned in the PIP.
ERROR #3- In the decision letter, the deciding official assessed the appellant’s performance in such elements under requirements that are not contained in the appellant’s performance plan, or even in the PIP, but, rather, are described in the appellant’s job description. Therefore, MSPB reminded CBP that, “…the appellant’s job description is not a valid performance plan that sets forth performance standards by which the agency was to measure the appellant’s performance.”
ERROR #4- The final decision letter identified task the employee failed to perform, but the standards set forth in the PIP required something different.
Consequently, MSPB’s bottom line was that “…we find that the agency failed to show that it communicated to the appellant the performance standards and critical elements of his position or that it communicated to him the critical elements and standards for which his performance was alleged to have been unacceptable.”
For more details on this case, check out Cadena v. DHS, DE-0432-19-0321-I-1 (Jul. 15, 2024)(NP).
