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U.S. Merit Systems Protection Board
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    Merit System Principles
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    Search & Site Index Merit System Principle 6:  Performance Standards
	"Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards."
	 
  **What is the intent  behind the sixth Merit System Principle?**
One of the problems the Civil Service Reform Act of 1978 (Reform  Act) was designed to address was the difficulty of discharging employees for  poor performance. Many people felt that the patchwork of statutes, regulations, rules, and  judicial restrictions built up over time had conspired, in effect, to tie the  hands of the personnel managers.  The  existing system was described as the “refuge of the incompetent employee,” and  when “incompetent and inefficient employees are allowed to stay on the rolls,  it is the dedicated and competent employee who must increase his workload so  that the public may be benefited.”  Remarks  of Senator Abraham A. Ribicoff, II House Committee on Post Office and Civil  Service, 95th Cong. 1st Sess., Legislative History of the Civil Service Reform  Act of 1978 at 1607 (1979).  The Reform  Act codified the nine merit system principles, including number six on  performance, and made other changes, to create “a civil service that is worthy  of the public and its confidence:  One in  which hiring, promotion, and pay are truly based on merit and one in which  those who cannot or will not perform their jobs well will not perform at all  for the Federal Government.”  *Id*.,  at 1606.
        **What is the Merit Systems Protection Board’s (MSPB)  adjudicatory role in unacceptable performance matters?**
          The Reform Act added  a new chapter 43 to Title 5, United States Code, titled “Performance Appraisal.”  New standards were authorized for evaluating  performance with sanctions of removal or demotion for unacceptable performance.   5  U.S.C. Secs. 4301-4308.  An  agency can reduce in grade or remove an employee for receiving a rating of  “unacceptable” with respect to even a single “critical element” if it has: (1) Set  up an approved performance appraisal system; (2) timely communicated the written  performance standards and “critical elements” of an employee's position to the  employee; (3) warned the employee of inadequacies in “critical elements” during  the appraisal period; and (4) counseled the employee and afforded a reasonable  opportunity for improvement after proper notice.  *See Lovshin  v. Department of the Navy, 767 F.2d 826, 833  (Fed. Cir. 1985)*.  While the authority of managers was  strengthened, the Reform Act was careful to protect employees with due process  procedures including notice, charges, the opportunity to respond orally and in  writing, representation by counsel or other representative, and a written  appealable decision. 5 U.S.C. Sec. 4303.  An employee may appeal to the MSPB an agency  decision to demote or remove the employee based on unacceptable performance and  the decision of the agency shall be sustained if supported by substantial  evidence.  However, it may not be sustained  if the employee shows harmful error in the application of the agency's  procedures in arriving at its decision, shows that the decision was based on a  prohibited personnel practice, or establishes that it was not in accordance  with law.  *Id.*,  at Sec. 7701.  Additionally, the Board may review the denial  of a within‐grade increase based on a finding that an employee failed to  perform at an acceptable level of competence under a Chapter 43 performance  appraisal system.  *See* 5 C.F.R. §§ 531.410(d), 531.409(b).
        **Are there  decisions from the MSPB during the last few years relating to the sixth Merit System Principle?**
          In order to take a removal action under Title 5, chapter 43,  the agency must show Office of Personnel Management (OPM) approval of the  applicable performance appraisal system, including any significant changes made  to a previously approved system.   In recent years the Board has  issued many decisions in Chapter 43 cases that reflect the importance of this  merit principle.  For example, in *Adamsen  v. Department of Agriculture, 2011 116 M.S.P.R 331  (2011)*, the Board found the agency failed to establish  by substantial evidence that it obtained OPM approval for the significant  changes it made to its performance appraisal system, and it reversed the  employee’s removal.  In *Henderson  v. National Aeronautics and Space Administration,  116 M.S.P.R. 96, ¶ 26 (2011)*, the Board found the agency performance standards for the employee's position did not  inform him of what he needed to do to achieve the various levels of performance  under the agency's five-tier appraisal system and were therefore invalid.  It affirmed the administrative judge’s  reversal of the employee’s removal.  On  the other hand, where the agency has complied with the requirements of chapter  43 and proven its charges by substantial evidence, the Board has affirmed the  demotion or removal of employees who perform unsatisfactorily.  *See Lee  v. Environmental Protection Agency,*115 M.S.P.R. 533 (2010).  The Board addressed the rights and  obligations of the parties with respect to the so-called “roller coaster  employee” in *White v. Department of  Veterans Affairs*, 120 M.S.P.R. 405 (2013), sustaining the removal of an  employee without a second opportunity to demonstrate acceptable performance  after his performance once again became  unacceptable within a year after he successfully completed such an opportunity. **Has the MSPB studied the issue of retention based on performance or otherwise correcting poor performance?**
The MSPB recently released a report, What is Due Process in Federal Civil Service Employment? In addition to discussing the history and reasoning behind the current civil service laws for adverse actions, the report also discusses the two key components of due process: 1) the opportunity prior to removal to understand the charges and offer a defense and 2) the right to appeal a removal decision before an impartial third party.
        In 2009 the MSPB issued a report titled Addressing Poor Performers and the Law. The report discusses the legal options that agencies have and the challenges they perceive in taking performance-based actions. On a similar note, the report Alternative Discipline: Creative Solutions for Agencies to Efficiently Address Employee Misconduct (2008) offers agencies ideas for implementing an alternative to traditional discipline when supervisors believe that this would produce a better outcome.
        **Has OPM issued any  guidance to help agencies comply with the sixth Merit System Principle?** 
          The OPM maintains a Resource Center for  Addressing and Resolving Poor Performance on its website.  It contains sample documents and frequently  asked questions.  The Federal Workforce  Flexibility Act of 2004 requires agencies to establish a comprehensive  management succession program that includes training to develop managers.  The OPM published final regulations in 2009  that incorporate the requirements of the Act.  Specifically, the regulations, found at 5  C.F.R. Part 412, require supervisory training within one year of a new  supervisor’s appointment and retraining at least once every three years on  options and strategies to mentor employees, improve  employees’ performance and productivity, conduct performance appraisals, and identify  and assist employees in addressing unacceptable performance.


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