THE CHERNOBYL INCIDENT AT NRC
There is a mushroom cloud climbing into the sky over the Nuclear Regulatory Commission that was triggered by management’s incompetence. NRC fired an employee for unacceptable performance back in 2018 and now must pay her around a million dollars in back plus retro leave earnings, etc. because the MSPB ruled its entire performance appraisal system sucks. The decision lays out some standards MSPB demands appraisal systems meet before agencies can terminate employees that all unions should make sure their own agencies’ system meet. It is my guess there are a few agencies out there that similarly fail to have a legal critical element system.. Here are some details from Latisha A. Zepeda, v. Nuclear Regulatory Commission, 2024 MSPB 14 (October 30, 2024).
Under certain performance appraisal systems, including the one at issue in this appeal, performance of a critical element may fall between “fully successful” and “unacceptable.” However, performance falling between those levels, e.g., “minimally successful” performance, would not support removal under chapter 43; only “unacceptable” performance is actionable under the statute. Performance standards are not valid if they do not set forth the minimum level of performance that an employee must achieve to avoid removal for unacceptable performance under chapter 43. Absent valid performance standards, the Board cannot consider charged performance deficiencies.
However, the NRC plan only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal under chapter 43.
The Board wrote “Performance standards must set forth in objective terms the minimum level of performance which an employee must achieve to avoid, inter alia, removal for unacceptable performance” A single standard in a five-tier performance plan violates the statutory requirement of objectivity because it requires extrapolation more than one level above and below the written standard, rendering the standard facially invalid.
Standards that fail to inform an employee of what is necessary to obtain an acceptable level of performance and instead describe what she should not do are also legally inadequate. They are called invalid backwards standards. Van Prichard v. Department of Defense, 117 M.S.P.R. 88, ¶ 18 (2011), aff’d per curiam, 484 F. App’x 489 (Fed. Cir. 2012).
The administrative judge noted that the PIP notice did elaborate on the deficient performance plan by providing a definition of minimally successful performance for each standard underlying the three critical elements at issue in this removal action. (As an aside, if agencies do that for a bargaining unit employee, unions should claim it is a change in working conditions and at least the I&I issues must be negotiated to conclusion before any “elaboration” of a standard can be used.)
The Board went on to hammer the agency for the ambiguity of its standards. NRC management claimed that although performance standard phrases such as “less than expected” is somewhat subjective, that was permissible because of the nature of the appellant’s work. “We disagree” wrote the MSPB. “The fact that the performance standard may call for a certain amount of subjective judgment on the part of the employee’s supervisor does not automatically invalidate it. However, the performance standards must be sufficiently precise and specific as to invoke a general consensus as to its meaning and content and provide a firm benchmark toward which the employee may aim her performance.”
The critical element/ performance standard system is one of the great management scams. It involves a lot of paperwork and lots of words and lots of key phrases, but almost without exception they are so vague as to be useless to employees. That’s what permits management to claim that the standards mean whatever the manager says they mean–even if that changes from day to day. Here is hoping that unions use this and another recent decision we will soon address to force management to do what MSPB says is required—or to give up on the unacceptable performance scheme and use the adverse action system to terminate employees. The union at NRC certainly has its hands full if the agency wants to bring its system into conformance with the law.
