Don't count on MSPB for protection

As a federal employee you have to stand up for your job rights. Otherwise don't be surprised if you are not treated fairly.

Nancy Manley an Air Force employee demoted because of an unfavorable and apparently unfair performance evaluation in July 1993 learned that the hard way. Formerly a GM-14 and chief of the pollution prevention division at Robins Air Force Base Ga. she was demoted to a GS-11 position as an industrial engineering technician following her evaluation.

In the evaluation the Air Force accused Manley of reckless disregard for her duties. The service said she had failed to respond to information - allegedly provided to her by a subordinate - about a potentially dangerous waste disposal practice.

Manley filed a grievance with the Air Force challenging the performance evaluation and appealed the action to the Merit Systems Protection Board.

An administrative law judge acting on behalf of the board found that Manley "did not recklessly disregard the duties of her position" and reversed the Air Force's action. The judge said the incriminating testimony of Manley's subordinate was "not credible."

The Air Force disagreed and filed a petition for a review of the case by the full board. But before the MSPB could hear the Air Force's petition the service reached a settlement with Manley and withdrew its request. Under this agreement the Air Force restored Manley to her GM-14 grade and assigned her the job of supervisory general engineer.

The Air Force reopened Manley's grievance proceedings but her problems were not over. She sought a better evaluation rating but the Air Force denied her grievance. She then filed a petition with the MSPB for enforcement of her settlement agreement.

Although the Air Force rated Manley's overall performance as unacceptable in five of seven areas the MSPB judge found that the service's statements on three of the five unsatisfactory ratings mentioned her subordinate's unsustained charges. The judge held that Manley's ratings could not stand.

He recommended that the Air Force rate Manley as fully successful for these three elements because she received such ratings in these areas on her 1992 evaluation.

However the judge also found Manley's overall performance unsatisfactory for reasons unrelated to the disputed adverse action. He ruled that her "rating on all the other elements as well as her overall [unacceptable] rating need not be changed."

Both the Air Force and Manley appealed the administrative law judge's ruling to the full MSPB. On one hand Manley disputed the judge's opinion that the service need not change her overall performance rating. On the other hand the Air Force argued that the agency had complied with the settlement agreement and questioned the board's jurisdiction over Manley's petition for enforcement.

The full MSPB ruled that it lacked jurisdiction over the petition partially because disagreement with a performance appraisal is not ordinarily appealable to the MSPB. The board dismissed the petition for enforcement without considering the merits of the case.

This prompted Manley to appeal the ruling to the U.S. Court of Appeals for the Federal Circuit. The court ruled that the MSPB does have jurisdiction.

The court said any mention of the unsustained charges and any ratings based upon those charges should be removed from Manley's 1993 performance evaluation.

The bottom line: The court remanded the case back to the MSPB. I hope that Manley will be vindicated but that is far from certain. I have seen far too many rulings in favor of management. I would not be surprised if it does so again.

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week.

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