U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

SUBJECT:	DECISION TO REMOVE FOR UNACCEPTABLE PERFORMANCE
FROM:	BEN TAYLOR, ASSISTANT DIRECTOR FOR ADMINISTRATION
FROM:	JOHN BROOME EMPLOYEE RELATIONS SPECIALIST

In a notice dated and received by you on October 20th, Maria Sanchez, Chief of Employee Relations, proposed to remove you from your position of Employee Relations Specialist, GS-230-13 and from the Federal Service, on the basis of unacceptable performance.

As the deciding official, I have carefully reviewed all the material that formed the basis for the proposal and that was also made available for your review. I have also given full consideration to our meeting of November 2nd, during which you presented your oral response to the proposed removal as well as your written response. While you mentioned several times that you believed I had already made up my mind about this case and that your response was meaningless, you nevertheless challenged, in general terms, the validity of the opportunity period and alluded to many technical inaccuracies. Despite my request that you provide me with a listing of specific errors that occurred in the course of the opportunity period, you never did so. Without any specific information, I cannot give your statements any weight in my considerations. Nonetheless, I have reviewed the documentation for technical inaccuracies and have found none.

You did state that you believed you had a heavier workload than the other specialists in the branch and that it was not possible to keep up with all of the calls from supervisors who needed assistance. However, I have reviewed the monthly case report from your branch and have found that you were assigned approximately the same number of cases to handle as your colleagues during June and July and were given fewer cases, comparatively, during the month of August. Secondly, your cases were not the most complex or arduous available. Although several were complicated, I found nothing of a difficulty that a specialist at the grade 13 level should not be expected to handle. I cannot, therefore, find any justification for your continuing failure to contact supervisors in a timely manner or your failure to meet your assigned deadlines. The evidence in the proposal notice and evidence file clearly indicates that you failed to meet the requirements for Fully Successful performance regarding the timeliness of your work.

You did not specifically respond to the issue of your failure to provide accurate technical guidance to supervisors and managers. I find the evidence compelling that your supervisor attempted to give you a mechanism for reviewing current case law and ensuring that your advice reflected any and all recent changes in the law. It is also obvious that, in many cases, you did not conduct appropriate research prior to advising managers and drafting notices that had to be revised or completely redone based on poor preparation on your part.

Your response dealt with the issue of "blame" for cited errors or delays; you felt you were being blamed for actions that were not your fault. The real issue is not one of blame but of responsibility; the examples cited by your supervisor clearly indicate that you have too frequently not met your responsibilities and have shown no indication of improvement or even of particular concern. While you have demonstrated an ability to perform this job in the past, you are currently failing to carry out one of the key functions and responsibilities of the position, and have made no effort to improve in this respect.

[An actual decision notice will discuss all pertinent issues raised by the employee in the response. Deciding officials may need to look into statements in the response or appoint a factfinder to determine the validity of some statements.]

I have very carefully reviewed your allegations of disability discrimination based on your medical documentation, including the diagnosis of diabetes. Although you did not inform your supervisor of this condition until 2 weeks into the opportunity period, I concur with the assessment by Ms. Sanchez that your medical condition did not impact on your performance and that there was no need to alter the conditions of the opportunity period. Memoranda of counseling reflect that your work was handled by coworkers or by your supervisor on any day that you were on sick leave for doctor’s visits. I have reviewed your statements regarding your supervisor’s negative attitude toward you after you revealed your condition. However, the examples you cite are of your supervisor’s counseling you concerning errors in your work or criticizing your failure to research appropriately. These reactions from Ms. Sanchez are typical of any supervisor reviewing an employee’s work during an opportunity period and I cannot find any evidence of a discriminatory motive. Nor can I find anything to support your argument that the opportunity period should have been discontinued until you got your medical situation under control.

I find that all the instances of unacceptable performance specified in the proposal notice of October 20th are sustained and that your performance in the critical element, Providing Technical Assistance to Managers, failed to meet the Fully Successful standard, as clarified in the opportunity period notice you received from Ms. Sanchez. I also find that you were given a reasonable opportunity to demonstrate acceptable performance, but failed to do so. Therefore, I find that your removal for unacceptable performance is warranted.

Accordingly, it is my decision that you be removed from your position of Employee Relations Specialist, GS-230-13, and from the Federal Service, effective November 30th. You will be continued in an active duty status with pay until the effective date of this action.

Because you have raised the argument that your medical condition, diabetes, prevented you from working in your position, I am notifying you of your option to file a request for disability retirement with the U.S. Office of Personnel Management. Should you wish additional information on how to submit this application for retirement, please contact Ms. Sarah Gloucester at (202) 555-1212. Disability retirement applications must be filed within 1 year of your last day of employment (November 30th).

Additionally, in accordance with Title 5 USC 4303 and 7121(e) and (f), you have the right to appeal this action to the Merit Systems Protection Board (MSPB), Washington Regional Office, 5203 Leesburg Pike, Suite 1109, Falls Church, VA 22041. You will be deemed to have exercised your option at such time as you timely file a notice of appeal to the Board.

An appeal to the Board must be in writing and must contain the information required by MSPB regulations, a copy of which is attached. You may submit an appeal at any time after the effective date of this action, November 30th, but not later than thirty (30) calendar days after that date. A copy of the appeal form that you may use is also attached. Please sign and date the attached copy of this memorandum, which serves only to acknowledge the date on which you received it.

[Note that this sample involves a non-bargaining unit employee who would not have grievance rights under a collective bargaining agreement. It is essential that you obtain information from the human resources office regarding appropriate appeal and/or grievance rights.]

Additionally, because you have alleged that this action was discriminatory based on your medical condition, I am informing you of your right to file a complaint with the agency’s Office of Equal Employment Opportunity (EEO). You may elect to file an appeal with the MSPB or to file a complaint with the EEO office, but you may not elect both at the same time.

You may bring any questions you have about this removal to me and I will explain any points that are unclear to you. If you have questions about your rights or the procedures used in this matter, you may contact Mr. Garrett Johnson, Director of Human Resources.

Receipt Acknowledged