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RULE 13:  PAY FOR PERFORMANCE 

IN GENERAL  

A Performance Improvement Plan is not a prerequisite to disciplinary action for failure to perform assigned tasks. In re Serna, CSB 39-12, 3 (2/21/14).

The different goals of Rule 13 Pay for Performance and Rule 16 Discipline and Dismissal require different tools. In re Roberts, CSA 84-07, 6 (3/7/08). 

The Career Service Rules do not prohibit rating an employee based on behavior for which discipline was imposed during the rating. In re Roberts, CSA 84-07, 6 (3/7/08). 

Rule 13 provides for an annual evaluation of an employee’s performance for the purposes of setting annual merit increases and giving valuable feedback to the employee. In re Roberts, CSA 84-07, 6 (3/7/08). 

Career Service employees who have passed employment probation are evaluated and rated once per year in a Performance Enhancement Program Report that is based on a comparison between the employee’s perceived performance and expectations set out in the year’s Performance Evaluation Program (PEP). In re Proctor, CSA 52-07, 3 (1/3/08). 

A performance review must be based on objective standards in the PEP or job description in order to give the employee notice of the criteria by which performance will be judged in the performance review. In re Proctor, CSA 52-07, 3 (1/3/08),citing In re Macieyovski, CSA 62-06, 3 (12/14/06). 

The overall performance review rating is not an exact calculation based upon the sum of equally weighted components, but is tied more closely to the expected accomplishments that have considerable influence or effect. In re Proctor, CSA 52-07, 8 (1/3/08) citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05). 

Evidence of performance issues contained in previous performance reviews may support an inference of notice or inferences relating to credibility. In re Proctor, CSA 52-07, 6 (1/3/08).

A Performance Improvement Plan (PIP) is not a prerequisite to disciplinary action for failure to perform assigned tasks. In re Serna, CSB 39-12, 3 (2/21/14).

Appellant’s needs improvement performance review was based upon her poor performance and refusal to incorporate suggested changes, rather than retaliation, where she: often arrived late and checked out early; repeated the same mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; claimed her scanning errors were due to hardware and software problems which no one else encountered; blamed her supervisor for not catching her (appellant’s) errors; and she failed to accept even a modicum of responsibility for her work product. In re Moore, CSA 103-09 & 21-10, 3-6 (10/14/10). 

The purpose of an annual performance review is to evaluate individual performance, and reward successful performance with merit pay increases under the Career Service Rules. In re Padilla, CSA 25-06, 10 (9/13/06).


An employee who received an overall PEPR performance review rating of meets expectations or better may be found deficient under this rule where he failed to meet his performance standards in a specific PEPR category, but late submission of the performance review forced the higher rating. In re Abbey, CSA 99-09, 9 (8/9/10). 

Interpreting the Career Service Rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-20 which permits an agency to assess discipline for inappropriate behavior or performance. In re Cady, CSA 03-10, 4 (4/22/10). 

The purpose of a PIP is to make an employee aware of performance deficiencies and to provide a reasonable opportunity for improvement. It also clarifies management’s expectations of job performance, particularly when an agency seeks to modify performance standards. In re Mounjim, CSB 87-07, 3 (1/8/09).

The objectives of a PIP are not served without clear communication to the employee about management expectations. In re Mounjim, CSB 87-07, 3 (1/8/09).

A PIP should identify performance deficiencies the employee is expected to address, specific actions the employee must take to improve performance, and the standards by which the employee’s performance will be measured. In re Mounjim, CSB 87-07, 3 (1/8/09).

Principles of fairness require that changes in management’s expectations be clearly communicated. In re Mounjim, CSB 87-07, 4 (1/8/09).

When an agency determines that materials submitted by an employee for purposes of a specific PIP requirement are so deficient as to justify disciplinary action, it is incumbent upon the agency to prove such deficiency, rather than on the employee to prove compliance. In re Mounjim, CSB 87-07, 5 (1/8/09).

An evaluation must be fairly based on the standards and measures in the PEP plan in order to give an employee notice of the criteria by which performance will be judged. In re Padilla, CSA 25-06, 10 (9/13/06); See also In re Macieyovski, CSA 62-06, 3 (12/14/06). 

Individual performance evaluations must weigh performance against objective standards to the extent feasible given the job being measured. In re Padilla, CSA 25-06, 10 (9/13/06)

CSRs require agencies to evaluate performance of non-probationary employees once a year. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05). 

Agency supervisor may revise the annual PEP, for which CSA authority is not needed, to include new duties an employee performed. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05).

While CSA approval is not needed to change a PEP, job specifications establishing  classification and pay for a position must be adopted by the CSB. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 5 (1/27/05). 

Performance is rated against an employee’s achievement of the expected accomplishments set forth in that year’s PEP, which details the duties to be performed by each employee holding a career service position within each agency. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05). 

Work review may be rated below expectations when employee failed to meet a significant portion of her expected accomplishments, even though she met more than 50% of her expectations. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

A significant portion of expected accomplishments has been interpreted to refer to expected accomplishments that have considerable influence or effect. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23), citing In re Douglas, CSA 154-02 & 166-02, 4 (1/27/03). 

The effect of a failure to perform determines whether the inadequacy of the performance merits a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23).

The proportion of positive to negative remarks in a supervisor’s day-to-day notes regarding an employee does not determine whether a performance must be rated at a certain level. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23).

An agency’s determination of what constitutes a significant portion of an employee’s accomplishments will not be overturned unless it is arbitrary, capricious, and without rational basis or foundation. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

Agency did not abuse its discretion in determining attendance, personal relations, personal contact,  safety, and security constituted a significant portion of appellant’s duties when her failure to perform in those areas exerted a considerable negative effect on her overall performance. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

Below expectations rating for attendance was not arbitrary when appellant’s pattern of leaving work without permission when angry undermined her supervisor’s authority to control staffing. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Below expectations rating in “personal relations” justified by Appellant’s confrontational criticism of her co-workers and refusal to comply with instructions on three occasions. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Below expectations rating in the area of personal contact for appellant’s continued confrontation of her co-workers was not comparable to a co-worker’s single heated exchange with another worker. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Violations that occurred outside the rating period cannot be used to support a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7-8 (1/27/05) (decided under former 13-10).

Below expectations rating for safety and security, which measured appellant’s compliance with agency rules and directives, was not arbitrary, based on appellant’s refusal to do assigned work until a job audit was completed, calling a co-worker an asshole, and leaving work without permission. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 8 (1/27/05). 

Below expectations rating for inappropriate conduct stemming from employee’s objection to fingerprinting duty was not arbitrary, although that duty was not specifically included in PEP plan. Appellant had been performing the duty since her hire three years previously, and was on notice for over two months that the agency considered her objection unfounded. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 9-10 (1/27/05). 

Career Service Rules do not support appellant’s argument that she may refuse to perform a duty that appears on a different job description and not on hers. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 9 (1/27/05). 

While PEPs do not require approval from the CSA before they are effective, changes to a classification and pay plan are not effective until approved by the CSB. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former 13-23).

While an employee may grieve any performance review rating, only an “unacceptable” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing CSR 19-20 B.1.b.i, 18-30 A.2.  

If the agency denies the grievance of a performance review rating then, on appeal, appellant must establish the rating negatively affected pay, benefits, or status. In re Muhammad, CSA 06-11 (Order 2/8/11). 

No aspect of the performance review program, other than a performance rating, may be grieved or appealed. In re Muhammad, CSA 06-11 (Order 2/8/11). 

Hearing Office lacked jurisdiction to consider appeal from denial of grievance of “successful” performance review rating. In re Muhammad, CSA 06-11 (Order 2/8/11).

This rule's prohibition, at § 13-50 C, of appeals of “any other aspect” of the PEP must be read in conjunction with the immediately preceding rule prohibiting grievance appeals of all ratings save "needs improvement." [now only “unacceptable”]. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09). 

Though no aspect of the performance review is appealable save grievance of an "Unsuccessful" rating, where appellants do not challenge the performance review rating, but allege a rule violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional rules 19-10 A.2.b.i. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2-3 (5/20/09).

While an employee may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if the agency denies the grievance. In re Stenke, CSA 14-06, 1 (3/15/06). 

NOT FOUND   

Appellant’s rating of “Unacceptable” [previously “failing” or “needs improvement”] was in accordance with the clear standards set out in the performance review, which allowed no more than one significant error in courtroom management per month, but appellant committed six significant errors. In re Roberts, CSA 84-07, 6 (3/7/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating was appropriate for appellant, who made thirty data entry errors in two quarters, exceeding the PEP standard for a successful rating of two errors per quarter, and who mistakenly processed a file as “dead” instead of dismissed. In re Roberts, CSA 84-07, 7 (3/7/08).

Appellant’s performance was “Unacceptable” [previously “failing” or “needs improvement”] in co-worker relations category where she admitted making angry and confrontational statements that adversely affected the work environment between her and her supervisor. In re Roberts, CSA 84-07, 7 (3/7/08).

“Unacceptable” [previously “failing” or “needs improvement”] rating for punctuality was not arbitrary, capricious, or without rational basis or foundation where standard was four late starts per quarter, but appellant was late thirteen times in two quarters. Her use of crutches mitigated the penalty, but did not render the rating incorrect. In re Roberts, CSA 84-07, 7 (3/7/08).

An overall rating of “Unacceptable” [previously “failing” or “needs improvement”] is not rendered arbitrary, capricious, or without rational basis or foundation simply because all the deficiencies on which it is based occurred in one part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03 (1/27/05).

“Unacceptable” [previously “failing” or “needs improvement”] rating for work performance in early part of rating period was not rendered arbitrary, capricious, or without rational basis or foundation by appellant’s impressive performance improvements during the latter part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08).

Administrator’s “Unacceptable” [previously “failing” or “needs improvement”] rating for her teamwork was not arbitrary, capricious or without rational basis or foundation where she left two new branch managers on their own to determine their training and duties, and she failed to ensure they were adequately equipped. In re Proctor, CSA 52-07, 5 (1/3/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating of administrator’s respect for self and others was justified by testimony that administrator was tactless and abrasive, and by concerns about her demeanor in five previous performance reviews. In re Proctor, CSA 52-07, 6-7 (1/3/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating of administrator for “other duties” category was not arbitrary, capricious or without rational basis or foundation where she did not meet with or mentor two new managers, and passed them from probation without consulting her supervisor. In re Proctor, CSA 52-07, 7 (1/3/08).

“Unacceptable” [previously “failing” or “needs improvement”] rating of administrator was not arbitrary, capricious, or without rational basis or foundation where she failed to meet significant portion of her expected accomplishments, and her shortcomings were critically important to her supervisory status. In re Proctor, CSA 52-07, 8 (1/3/08).