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MSPB: Burden of proof in performance actions.

MSPB: Burden of proof in performance actions.

To establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal – however, the burden is much lower than in misconduct cases.

In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of proof in the legal system. Essentially, it means that amount of evidence that a reasonable person would find necessary to believe the fact being question – even though other reasonable people might draw a different conclusion. Thus, as long as one Administrative Judge finds the Agency’s evidence substantial, it doesn’t matter that every other Judge might find it un-substantial.

The Agency must prove, by substantial evidence, that:

it has a performance appraisal system approved by OPM

it communicated the performance standards and critical elements of the employee’s position to the employee;

the employee failed to meet one or more critical elements of the employee’s position; and,

the Agency provided the employee a reasonable opportunity to improve his or her performance to an acceptable level.

The first element is almost always proved up in the Agency’s File. It is rare to find an Agency without an OPM approved appraisal system – although it could still happen.

The second element is usually a good point of attack – managers (especially federal managers, for some reason) don’t like to have “tough conversations” with employees about performance, and often fail to provide feedback or notice to the employee.

The third element is fact intensive. The Board will want to understand precisely how the employee failed to perform. If the Judge doesn’t fully comprehend the nature of your job, and how you worked to improve your performance, there is a good chance you won’t prevail.

The fourth element is different for every employee – what might be reasonable under one set of circumstances is not always reasonable under every set of circumstances. Thus, a reasonable opportunity for an administrative assistant to improve would likely look much different from a reasonable opportunity for a senior I.R.S. Revenue Officer to improve.

Because the Agency has such a low burden of proof in performance removal cases, it is much more important that you consult with an attorney sooner rather than later, if you intend to have an attorney represent you if/when you are removed. The Law Offices of Eric L. Pines, PLLC likes to meet with employee as soon as they are given notice of the “PIP” or Performance Improvement Period.

If you would like to consult with an MSPB attorney regarding a performance removal or demotion action, contact the Law Offices of Eric L. Pines, PLLC as soon as you receive the PIP letter.