Number 137                    September 2000

COURT DECISIONS  |   FLRA    |   MSPB

Department of Agriculture, Farm Service Agency, Oklahoma State Office, Stillwater, Oklahoma and American Federation of Government Employees, Local 3354, 0-AR-3295, September 22, 2000, 56 FLRA No. 112.

FLRA turned down the agency's exceptions to an award in which the arbitrator--relying on witness testimony, documentary evidence, and the grievant's past performance--held that the reviewing official's lowering of the rating given the grievant by the first line supervisor was improper, and ordered that the grievant's performance rating be restored to "outstanding."

Although the grievant's first line supervisor gave the grievant an outstanding rating, the reviewing official, over the objection of the first line supervisor, ordered that two elements of the grievant's evaluation be lowered, thus resulting in an overall rating of "superior." In a memorandum the reviewing official explained that "it is my duty . . . to maintain consistency throughout the District." The employee grieved and the matter was referred to arbitration.

The arbitrator found that the reviewing official's decision to reduce the overall rating was based on unsubstantiated facts over the strong objection of the grievant's supervisor. He noted that the grievant's past performance ratings had been outstanding and found that witness testimony established that the reviewing official had little opportunity to review the grievant's performance. Moreover, testimony and documentary evidence supported the first line supervisor's determination that the grievant had performed at an outstanding level. The arbitrator, quoting the testimony of an agency witness who stated that employees should be rated according to their individual performance, concluded that the grievant's performance appraisal did not accurately reflect her performance. He accordingly ordered that the rating be restored to outstanding and that she be made whole for any losses associated with the inaccurate rating.

FLRA rejected the agency's claim that the award was contrary to agency regulation.

[T]he Agency does not disagree with the Arbitrator's interpretation of the FSA Handbook to mean that individual performance ratings may vary from person to person and still be consistent with Agency policy and guidelines. Moreover, the Agency does not except to the Arbitrator's findings of fact. Rather, the Agency focuses on a reviewing official's authority to change a rating. The award leaves such authority intact, while requiring the exercise of that authority to be consistent with an employee's actual performance. Although neither party cites to government-wide performance appraisal regulations, we note that ratings "shall be based only on the evaluation of actual job performance for the designated appraisal period." 5 C.F.R. 430.208(a)(1). Therefore, we find that the award is not contrary to the Agency regulation.

FLRA also rejected the agency claim that the award failed to draw its essence from the negotiated agreement, noting that the agency didn't specify any provision from which the award allegedly failed to draw its essence.

The key to this case is that although the reviewing official has authority to change a rating, that authority isn't unlimited. The rating must be based on (i.e., consistent with) actual performance. Here, the arbitrator found that the evidence supported the first line supervisor's belief that the grievant's performance was outstanding.