Conditions of Employment Revisited: VA Priest’s Case Didn’t Have a Prayer

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By Barbara Haga, October 18, 2022

I have written several articles about conditions of employment over the years. They are typically simple cases processed under 5 USC Chapter 75. The newly constituted Merit Systems Protection Board ruled on one of these cases in September. I think it’s worth looking at the issue again since this topic comes up in many of my training courses.

If it is a condition of employment that an employee possess, obtains, and/or maintains a license, certification, or membership status, then failure to comply is the basis for the adverse action.

To win these cases, you would need to show:

  • The employee occupied a job requiring the certificate, license, or status,
  • The employee failed to obtain or lost the certificate/license/status, and
  • If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

In Gallegos v. Department of the Air Force, 114 FMSR 185 (MSPB 2014), the Board wrote the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

If the employee engaged in some misconduct that led to the loss of the license or certification granted by a third party, such as off-duty misconduct that led to the loss of membership in the bar, the agency is not required to prove anything about the underlying reasons for loss of the membership, but instead must show that the person no longer has whatever the credentials are that are necessary to fulfill the duties of the position.

‘Possessing Faculties’

In my April 2019 column, I discussed conditions of employment in several different types of cases, one of which involved a Catholic priest.

That case was Ezeh v. Navy, 114 FMSR 13 (NP) (MSPB 2013). The condition of employment in that case was possessing “faculties,” the authority to provide ministry to military members through sacraments of reconciliation, baptisms, weddings, annulments, and parish funerals, and to perform Catholic mass.

The determination to grant or deny faculties was made not by the employing agency but by the Archbishop of the Military Services (AMS), which is not a Federal position, but a position within the Catholic church. AMS is the sole endorser of Roman Catholic priests serving in positions such as that held by Chaplain Ezeh.

In this case, there is no information in the decision about the reasons behind the Archbishop’s determination to terminate Chaplain Ezeh’s faculties.

The new Board issued a decision on a similar set of circumstances, but in this case the information on which the termination of faculties was based is included. The case is Dieter v. Department of Veterans Affairs, 2022 MSPB 32 (September 2022). Chaplain Dieter worked at a VA Medical Center in Florida.  His position was subject to the same requirement as Chaplain Ezeh’s position discussed above, including the requirement to have faculties granted by the AMS. [Editor’s note: Attend Back on Board: Keeping Up with the New MSPB tomorrow (October 20) from 1-3 pm ET.]

The events that led to Dieter’s removal began with a statement he made during Mass. His homily included the following statements:

  1. During the early hours that morning, Dieter received a call from a 95-year-old veteran he knew, and the veteran stated that he was being burglarized at that moment.
  2. Dieter phoned the police then went to the veteran’s home and entered, where he saw two young men in the home and confronted them.
  3. Dieter hit one of the young men and knocked him out. He was wearing the Roman collar at the time he knocked out the young man. He verbally demanded that the other young man get on the floor.

Someone in the congregation recorded a video of the homily. The statements were reported to the chief of chaplains. He reviewed the video and came to certain conclusions, including that Dieter failed to exercise good judgment in revealing information during Mass about the burglary and his response, including potentially being responsible for assault and battery of a minor. The chief of chaplains noted that Dieter presented himself as the rescuer of the weak and powerless and a hero and prided himself as a Roman Catholic priest for having beaten a young man.

Scope of Review

Dieter later said the statement was not true. The reviewing authorities found the statement in the homily to be totally inappropriate whether true or not. Dieter’s ability to serve as a Catholic priest was terminated.

In the initial decision, the AJ notified Dieter the scope of the review was “… was limited to determining whether (1) the appellant’s position required an ecclesiastical endorsement; (2) the ecclesiastical endorsement was denied, revoked, or suspended; (3) the agency provided the appellant with the procedural protections specified in 5 U.S.C. § 7513; (4) the agency complied with its own regulations regarding the matter; and (5) the agency afforded the appellant due process with respect to its decision to remove the appellant.”

Dieter’s arguments focused on two main points. First, because he indicated the information in the homily wasn’t true, management violated his rights by not conducting an appropriate investigation into the misconduct before it was reported to Catholic officials. He said that “… if the agency had interviewed him before it provided information to the AMS, he would have ‘had the opportunity to set the record straight that the homily was fictional, and he had not assaulted a minor.’”

Had that happened, he alleged that it “may well have stopped the agency’s liaison to the AMS from sending the information to the AMS or may have been sufficient to convince the AMS not to withdraw his endorsement.”

The Board noted that Dieter had “… no property or liberty interest in his ecclesiastical endorsement, and, therefore, the agency’s failure to conduct an investigation prior to communicating with the AMS did not implicate any due process concerns.”

Secondly, Dieter noted in his oral reply that he could not adequately defend himself without information regarding AMS’s decision to withdraw his ecclesiastical endorsement. The AJ dealt with this matter in the initial decision stating: “Because the agency relied on the loss of the appellant’s endorsement as the basis for its action, it was not required by the dictates of the due process clause to provide the appellant with notice of the matters the Archdiocese may have considered in reaching its decision to withdraw the appellant’s ecclesiastical endorsement and faculties.”

The Board further addressed the issue: “We agree with the administrative judge’s determination that the Board lacks the authority to review the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement and is, in fact, precluded from doing so by the First Amendment.”

Effective Performance Plans are Key to Supervising Teleworkers

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By Barbara Haga, September 12, 2022

I recently led a virtual training session on creating effective performance narratives as part of FELTG’s Federal Workplace 2022: Accountability, Challenges & Trends event, where I discussed several issues related to performance plans and narratives. I started with a quick discussion about plans for teleworkers. I thought it might be beneficial to explore that topic further here.

A request I have heard more than once in the past few months is a need for help with performance plans for teleworkers. This one usually leaves me scratching my head. How were managers holding people accountable for work results since 2020 if we are talking about creating plans for those workers in 2022?

Effective performance management and successful telework arrangements go hand in hand. That has been the requirement for more than ten years. Section 6502(b)(1) of the Telework Enhancement Act of 2010 stated that agencies policies on telework had to “… ensure that telework does not diminish employee performance or agency operations.”

There would have to be some way to assess performance results, which should have come through individual performance requirements.

OPM’s updated telework guidance is published in the 2021 Guide to Telework and Remote Work in the Federal Government. For our purposes, we are not going to distinguish between routine telework, situational telework, or remote workers, because for this topic, the type of telework arrangement doesn’t matter.

Here is OPM’s key point regarding teleworkers and performance plans:

When implementing the telework program, managers should keep in mind that performance standards for teleworking employees must be the same as performance standards for non-teleworking employees. Also, management expectations for performance should be clearly addressed in an employee’s performance plan, regardless of whether or not the employee is a teleworker. When an employee participates in telework, expectations related to accountability do not differ by virtue of the telework arrangement.  (p.36)(underscoring added)

This guidance is not new. It has been this way since telework came on the scene.  Does that make sense?

Same Outcomes Reached Differently

The best way I know to explain it is that the teleworker is held to the same outcomes, but how the manager gets to the point of measuring that outcome might be different. Let’s use an example of an employee relations specialist preparing discipline and performance-based actions. Here is the Fully Successful standard for the critical element Technical Competence that is similar to standards I have used for staff members in the past.

Demonstrates a thorough under-standing of law, rule, and regulation that applies to the assigned functional area.  Provides effective management advisory services to assigned organizations which reflect well thought-out solutions and viable alternatives. Documents are clearly written and are prepared in keeping with agency format requirements.  Notices and decisions 1) incorporate up-to-date information in terms of agency policy and third-party decisions, 2) include appropriate citations to contracts, policies, etc., 3) clearly and completely cover the elements of the case, and 4) incorporate required information on employee rights in the matter.  Demonstrates a basic understanding of other personnel functional areas to ensure that his/her own work is fully integrated with other functions.

It would seem to me that this standard could work in either an in-person or telework situation. Perhaps in the pre-pandemic world, notices and decisions such as these were left on my desk with the case file so I could review them before they were issued. That way I had detailed information on the clarity of the elements of the case, whether due process was observed, whether the notice incorporated the latest case decisions, etc. In a world where this work is accomplished at a different location, I could still see the letter if it was sent by e-mail to me or through an automated system. What might be new is how I could see the case file remotely, so there would have to be an alternate arrangement for me to get those, but I would be judging the work on the same things regardless of whether my employee worked on that action down the hall or miles away from the agency office.

Better Methods Across the Board

Perhaps the need to evaluate the teleworker’s performance means that I recognize a new way to identify the outcomes for all employees. Determining whether effective advice was given might have been easier in a pre-pandemic world. Maybe, as the office head, I attended staff meetings with the serviced organizations, and I received regular feedback in those sessions about the quality of guidance provided. There may also have been a lot of informal interactions in the cafeteria or walking down the hall with those managers who were receiving guidance from my staff members. Things may be different now, but I still need to know whether the advice is effective. Just looking at the letter being issued doesn’t really tell me how well the manager was advised throughout the process.  One solution would be to do some follow-up on a sample of actions for all staff, not just the teleworkers.

Using a neutral method of choosing which cases I am going to follow up on, I could select a certain number of lower-level disciplinary actions and some adverse and performance-based actions for each of my employees. I could design a questionnaire or, perhaps, set up a time for a phone call to interview the manager involved in the action with a set of standard questions about how well they were walked through the steps of proposing/taking action.

Ultimately, as the rater, I would have to determine if the advice was effective – whether my employee allowed the manager to decide or tried to force the manager to take a particular action, whether my employee explained the steps of how various actions might take place, and what the potential issues might be that could come out of an action in terms of grievances, complaints, and appeals, etc.

It’s interesting that a lot of positions have measures about providing effective advice in their performance plans, but when I ask how that is assessed supervisors often answer: “Nobody complained.” That’s not enough – telework or in-person.

Next month we will look at some other related performance matters!

 

Applying Santos: It’s a Good Time to Take a Look at Your Appraisal System

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By Barbara Haga, June 21, 2022

Santos v. NASA changed the landscape last year, placing an additional requirement on agencies to prove that the person who was being placed in an improvement period for unacceptable performance actually was unacceptable at that time. Santos v. NASA, 990 F.3d 1355, Fed. Cir. 2021.

It’s not the biggest leap one could imagine. In some agencies, HR staff routinely gave a recounting of prior unacceptable behavior as part of their PIP notices anyway. I certainly did it in the old days and taught it that way – until someone convinced me that I didn’t have to do it.

Now, times have changed.

With the recent decision from the Board in Lee v. VA, 2022 MSPB 11 (May 12, 2022), cases decided previously are being remanded for proof in this regard.

In November 2020, OPM wrote in the supplementary material regarding 5 CFR 432.104: “The amended rule does not relieve agencies of the responsibility to demonstrate that an employee was performing unacceptably – which per statute covers the period both prior to and during a formal opportunity period – before initiating an adverse action under chapter 43.” That’s what the Federal Circuit quoted in Santos. In its January 2022 proposed regulations (87 FR 200), OPM stated that the Federal Circuit “misread” its position. We will have to wait and see what happens when the Federal Circuit next looks at the issue. In the meantime, Santos is controlling.

So, what am I adding to this discussion? Just a caution for those agencies who have a Minimally Successful/Needs Improvement (Level 2) rating on their critical elements. If you don’t have such a level on your elements, you can stop reading now and move on to another article. If you do have a Level 2 on your elements, there is a point you should be aware of in applying Santos.

The Sky is Not Falling

 I am sure some of you are thinking, “Oh, no, what now?” Before you get excited, I should note that not many agencies have a Level 2 element rating. A lot of agencies have switched away from systems that included that. For example, most of the Department of Defense eliminated Level 2 in recent years. The Department of Interior doesn’t have it anymore. Neither does NASA.

Not even everyone with a Level 2 in their system has an issue.  You could have a Level 2 summary rating without having a Level 2 on an individual critical element. This could be done with non-critical elements (e.g., the person fails a non-critical element and ends up with a Level 2, but if they fail a critical element that’s a Level 1).

Most who have a Level 2 summary rating have a Level 2 element rating, too. Still, that may not be a problem. If you have a decent written Level 2 standard in place throughout the cycle, you’re fine.  The problem could come up in two ways:

1) You need to adjust your Level 2 because it is very generic and you need to make it specific enough to adequately communicate Level 2 to the employee with the PIP notice, or 2) You never wrote it at all until you issued the PIP. If you fall in these two groups, Santos is going to make you change your process.

Tracing Board Cases on this Issue

I have a list of cases on this topic that I include in my Advanced Employee Relations course materials every time I teach it.   [Editor’s note: Register now for Barbara for Advanced ER in Norfolk on August 2-4.]

There are a few famous – or infamous – cases where agencies lost their 432 actions because they had a Level 2 on the element but never communicated a Level 2 standard to the employee during the PIP.

I always emphasize the point that this is a procedural error, and it doesn’t matter how many boxes of evidence of poor performance that you may have, you lose.

Here’s a quick list of those cases:

  • Jackson-Francis v. OGE, 103 MSPR 183 (MSPB 2006)
  • Henderson v. NASA, 2011 MSPB 12 (MSPB 2011)
  • Pace v. Army, CH-0432-14-0335-I-1 (MSPB 2015)(NP)

The employee in Latimer v. Air Force, CH-0432-17-0114-I-1 (May 17, 2017)(ID) was covered under the Defense Civilian Intelligence Personnel System (DCIPS). The vast majority of DOD employees were rated under a system without a Level 2 when this decision was issued. However, DCIPS had one.

Henderson v. NASA was decided before NASA eliminated Level 2 from its rating system. The decision includes a succinct paragraph that explains the problem:

The administrative judge correctly found that each element of the performance plan has five possible ratings, i.e., “fails to meet expectation[s],” “needs improvement,” “meets expectations,” “exceeds expectations,” and “significantly exceeds expectations.” ID at 5; IAF, Tab 4, Subtab 4w at 3. The performance standard for the appellant’s position, however, only sets forth one level of performance, i.e., what one must do to “meet” the standard. ID at 5, 12; IAF, Tab 4, Subtab 4w at 4-6. Where an appellant is rated on a five-tier system for his critical elements, the agency must inform him, at a minimum, of what he must to do to perform at the “needs improvement” level to avoid a performance-based action. See, e.g., Jackson-Francis, 103 M.S.P.R. 183, ¶¶ 6-7, 10 (the agency erred by requiring the appellant to reach a “fully successful” level of performance during the PIP to avoid removal under chapter 43 because under a five-tier system, an employee’s performance can be “not satisfactory” without falling to a level that requires removal). Therefore, because the agency’s five-tier performance appraisal plan is based on a single written standard of satisfactory performance, the administrative judge correctly found that it violates the statutory requirement of objectivity because it requires extrapolation more than one level above and below the written standard. Id. at 5, 12; see Donaldson, 27 M.S.P.R. at 295-98. (underlining added).

If the Board requires the Level 2 standard to be in place to judge whether the performance is unacceptable during the PIP, it seems logical that they will also find that without it being in place you cannot prove that the person was unacceptable prior to the PIP. Just a word to the wise.

Disciplining Management: The Bigger They Are, the Easier They Fall

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By Barbara Haga, May 16, 2022

In supervisory training classes, I have heard participants comment about a double standard for corrective action. In essence, they said that if a non-supervisory employee messed up and violated some conduct rule, he would be hammered, but if it was a higher-level manager, it would be swept under the rug.

My usual response is that’s not true, which is based on my own experience. I could rattle off specifics regarding some of the cases I worked on myself or have studied thoroughly. I usually make a comment along the lines of “the bigger they are, the easier they fall,” since the Douglas factors take into account the type of position held. Also, managers are held to a higher standard.

I was reviewing decisions issued by the newly comprised Board and I was struck by the fact that several involved those high-level officials. The decision I am writing about this month particularly caught my attention because:

  1. The charge of conduct unbecoming is one I have written about more than once.
  2. Some of the specifications involved thorny actions for which it’s debatable whether they were removal-worthy misbehavior.

It is a non-precedential decision, but helpful for understanding where the lines can be drawn.

The Initial Decision

The case is Hornsby v. FHFA, DC-0752-15-0576-I-2 (April 28, 2022). [Editor’s note: Read about FELTG President Deborah Hopkins’ recent take on Hornsby.]

This was an appeal from an action that took place in 2015. Hornsby was the Chief Operating Officer for the Federal Housing Financing Administration. He was removed for conduct unbecoming, including 18 specifications.

Four of the specifications were threats. One was: “I can understand how someone could go postal. If I decide to take myself out, I will walk into Ed DeMarco’s (Former Acting Agency Director’s) office and blow his brains out and then kill myself.”

The AJ did not sustain these four specifications based on her credibility findings. This was a “he said – he said” issue. The other party was the HR Director who was subordinate to the appellant. The AJ found the appellant’s version of what he had said and done at least as credible as the HR Director’s version. The Board did not disturb the AJ’s credibility findings on these specifications.

The AJ also did not sustain the remaining specifications, which included the appellant engaging in the following actions:

  • In a meeting, he placed his hand over the mouth of the project director for the National Mortgage Database to silence him from making further comments.
  • He told two agency attorneys that a memorandum they had drafted discussing agency liability regarding data breaches might be a “career ender.”
  • On unspecified occasions when he was dissatisfied with one or more HR employees, he told the HR Director that he would outsource the HR function. Specification 13 involved saying the same thing about the Contracting Operations group.
  • He lost his composure in an HR meeting and expressed a desire to fire anyone who had complained about him.
  • He asked the HR Director to go to the former acting director and ask him to raise his Level 3 rating so that he could get an executive bonus.

The AJ found six of the specifications in this group weren’t supported with sufficient evidence. For the remaining eight specifications, the AJ found discipline wasn’t reasonable. The AJ accepted the explanation regarding the incident with the mouth-covering and determined the person with the covered mouth was a friend and he was protecting him by stopping him from talking. The AJ found that the statement about ending one’s career with a particular legal position was simply not unbecoming.

After reading all of this, I couldn’t help but think what it would be like to work in an organization whether this person would have been my second-level supervisor. I’ve worked in a situation where the person superior to the HR Director didn’t know much about how HR should work, knew very little about ER/LR, and might have made decisions that I didn’t agree with, but I have never been in a situation where that individual was threatening or malicious. I think it would make it very hard to go to work every day with optimism about what you could accomplish or the future of your program or your agency — or yourself.

The Board’s Decision

The Board reinstated the removal. Among other rulings, the Board found that even though the subordinate wasn’t offended, a manager putting his hand over an employee’s mouth in a meeting was improper and unsuitable. The Board also found the “career ender” remark was intimidating. It upheld that specification.

Regarding the specification about asking the subordinate to intervene regarding the appellant’s appraisal, the Board stated, “We find that it was improper for the appellant to do so. As previously noted, the appellant was the HR Director’s immediate supervisor. Thus, in making this request, the appellant was placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

The ruling on the penalty is worth reading. Many of the things cited are bad behavior that many of us may have seen in our careers. Any one of those things alone might not support significant discipline.  However, when taken together, they show a manager not operating appropriately in that role.  Only 5 of the 18 specifications were sustained. However, in the words of the Board, several of them were serious or highly serious.

Noting that Hornsby was a high-ranking supervisor who occupied a position of trust and responsibility, they found it appropriate for him to be held to a higher standard.  The Board concluded:

“Although the agency failed to establish much of the specific misconduct, the specifications we do sustain are without question quite serious. Thus, based on the specific facts of this case and the proven level of impropriety, we find that the agency’s chosen penalty is within the parameters of reasonableness and that the sustained specifications warrant removal.”

What Types of Leave Count in an Excessive Absence Case?

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By Barbara Haga, April 11, 2022

Excessive absence seems so basic we shouldn’t need to address it anymore. However, questions do still arise about what works and what doesn’t. Occasionally, someone asks a question about something new, as happened recently when a FELTG customer inquired about excessive absence and COVID-related leave. First, let’s trace how we got here.

Back in the olden days of excessive absence cases when I was a Navy HR practitioner, the interpretation of when excessive absence worked was that the employee had to exhaust available paid leave, both sick and annual, and then go on leave without pay for a significant period for the agency to be able to proceed. That left management in a tough spot when the employee had done the right thing and accumulated potentially thousands of hours of sick leave. Board decisions added further confusion over the years regarding whether you really had to wait for the employee to use up the paid leave.

In 1993, the FMLA created another leave category that was guaranteed each 12-month period. However, it could not be included in an excessive absence charge.

The Board resolved the first issue about what counted in the excessive absence charge in McCauley v. Interior, 116 MSPR 484 (2011). In this decision, the Board overruled prior interpretations about what leave could be counted. Here is the key ruling:

There appears to be some inconsistency in Board precedent regarding what leave can be used to support an adverse action based on excessive leave use. See, e.g., Curtis v. U.S. Postal Service, 111 M.S.P.R. 626, ¶¶ 9-11 (2009) (holding that an agency cannot discipline an individual for his use of approved sick leave but can discipline an employee for his use of unscheduled LWOP); Allen v. Department of the Army, 76 M.S.P.R. 564, 570 (1997) (holding that an agency can bring an action against an employee for excessive absence even if the absence is excused on grounds of poor health); Webb v. U.S. Postal Service, 10 M.S.P.R. 536, 543 (1982) (holding that an adverse action taken by an agency against an employee based on periods of approved leave does not promote the efficiency of the service). Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences. To the extent that the Board has held or implied otherwise in cases such as Curtis, 111 M.S.P.R. 626, Ryan v. Department of the Air Force, 107 M.S.P.R. 71 (2007), Scorcia v. U.S. Postal Service, 78 M.S.P.R. 588 (1998), Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401 (1997), Clark v. Department of the Navy, 12 M.S.P.R. 428 (1982), and Webb, 10 M.S.P.R. 536, those cases are expressly overruled. (italics added)

The next paragraph reiterated that FMLA hours could not be included in the charge:

“Because Congress’s clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security, use of FMLA in any calculation to remove an employee is inappropriate. Therefore, it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave.”

A footnote states:

“When enacting FMLA, Congress found that there was a “lack of employment policies to accommodate working parents [that could] force individuals to choose between job security and parenting” and there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” H.R. Rep. No. 103-8(I) at 1 (1993).” (italics added)

Excessive Absence and Savage

In Savage v. Army, 122 MSPR 612 (2015), the Board revised the interpretation in McCauley that AWOL hours could be included in excessive absence charges, since an excessive absence charge by its nature is a charge regarding approved absences and AWOL is unapproved. Thus, since 2015, AWOL must be cited separately in its own charge.

A reader asked whether Emergency Paid Leave (EPL) could be counted in an excessive absence charge. We won’t know for sure until such a case is ruled on by the Board, but here is the conclusion I reached and the basis for it.

EPSLA and EPL

 We have two different laws implementing COVID-related leave. In 2020, the leave was implemented by the Families First Coronavirus Response Act (FFCRA), which established two paid leave benefits, but only the Emergency Paid Sick Leave (EPSLA) applied to most Federal employees.

The EPSLA regulations issued by the Department of Labor begin with the following statement: “The Department of Labor published in the Federal Register on April 6, 2020, a temporary rule to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of the Coronavirus Disease 2019 (COVID-19) global pandemic.” (italics added)

EPSLA included a section on prohibited actions which stated, “It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who — (1) takes leave in accordance with this Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.” Thus, it’s clear that the 2020 type of COVID-related leave could not have been used in an excessive absence case.

EPL was created by President Biden’s American Rescue Plan, which was signed in March 2021.  There is no preamble in the Act itself or anything in Sec. 4001 which created the EPL benefit for Federal employees that describes Congress’ intent in providing the leave. But it is important to remember that EPL was designed to give a much greater amount of leave tied to the same public health emergency that FFCRA had dealt with. It should also be noted that the Treasury provided funds for agencies to receive reimbursement for the Emergency Paid Leave specifically to limit the impact on agencies.

Conclusion

I see significant parallels between the language regarding implementation of FMLA, which was specifically enacted to protect workers because of temporary absence due to a serious medical condition, and the language that is used where Congress has responded to COVID-related absences. The 2020 bill specifically indicated there could be no disciplinary penalty for its use. My gut reaction is that the MSPB will say an employee should not be penalized for using the EPL provided in 2021 specifically because of the pandemic.

A Head-shaking Tale About Lack of Candor

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By Barbara Haga, March 15, 2022

Last month, I wrote about the case of Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir. Aug. 7, 2020). Freeland was a supervisory human resources specialist who was hired by DHS after resigning from his Army job under shaky circumstances. Most of what I covered last time centered on how exactly DHS hired someone with this kind of background. After all, we in the HR Office should be pretty good at recognizing the signs of trouble and knowing how to check references and ask good questions about past employment.

Let’s look at the lack of candor charge in Freeland’s removal case.

To recap: DHS brought Freeland to work on Sept. 20, 2015. He was removed in 2017 from the position of supervisory human resources specialist in the Recruitment and Placement Branch of a DHS Human Resources Operations Center. Prior to working for DHS, Freeland held the same type of position at an Army Civilian Human Resources organization. He resigned in May 2015 after he was issued a proposed 14-day suspension for negligent performance of duties. At the time of his resignation, he was also the subject of a workplace sexual harassment investigation.

After the tentative DHS offer, Freeland was required to complete an SF-85P, Questionnaire for Public Trust Positions. Question 12 of the form asks: Has any of the following happened to you in the last 7 years?

  1. Fired from a job
  2. Quit a job after being told you’d be fired
  3. Left a job by mutual agreement following allegations of misconduct
  4. Left a job by mutual agreement following allegations of unsatisfactory performance
  5. Left a job for other reasons under unfavorable circumstances

Freeland completed and signed his SF-85P form on two occasions, once on July 18, 2015, and again on Sept. 23, 2015. In both instances, he answered “no” to this question without providing any further details in the corresponding comments section.

(Note: The SF-85P was revised in 2017. The current version of the form has these questions in Section 13, not 12, and the questions asked are different.)

The Investigation

Roughly four months after Freeland completed the form the second time, he was interviewed by an OPM investigator. The investigator asked about the situation surrounding the departure from his Army position. Freeland initially denied any issues with his Army employer until he was directly confronted by the interviewer who had information that the Army had proposed a disciplinary action against him. Freeland also initially denied the sexual harassment allegation until he was directly confronted by the interviewer with the allegation. OPM issued its findings to the DHS Office of Security and Integrity, Investigations Division (OSI). OSI noted that OPM rated it a D-issue, indicating that a significant impediment existed for obtaining background clearance. On Aug.18, 2016, OSI sent its review and excerpts from the OPM background investigation to the Chief of the HROC.

One year later, DHS issued a notice of proposed removal based on lack of candor. The charge was supported by three specifications. Two of the specifications were based upon the responses on the two SF-85P forms he completed. The third specification was based on the follow-up interview when Freeland initially denied having any problems or issues in his prior Army employment.

I am biting my tongue. I want to write about why it took one year to get this person off the rolls. He was a supervisor. He was a staffing specialist. Based on the third specification, he was not honest in responding about the circumstances of his departure from the Army. He would have signed an OF-306 as a new employee which gave permission for DHS to go directly to the Army to get the information. According to the Federal Circuit decision, Freeland was placed on a probationary period when hired by DHS. The probation would have ended on Sept. 19, 2016. The DHS OSI turned over its report on August 16, 2016.

Why did they not terminate him? Pre-appointment procedures would have required notice and a “reasonable” period of time to respond, but that’s all. (See 5 CFR 315.805(b)). I’m going to let that go, though, and end with what Freeland said in his defense. That’s the unbelievable part.

Freeland’s Response?

Freeland argued that he had finished his “conditional” period with DHS, ostensibly meaning that agency couldn’t take action on the information about his Army employment. The Court found that Freeland had completed his one-year probationary period, but that he confused that with the requirement of being subject to a background investigation. (One would expect that a supervisory staffing specialist would understand these things.)

The truly surprising arguments were these:

Freeland stated that his incorrect answer on the SF-85Ps was not done for “personal gain.” The Court dealt with this as a Douglas factor issue and upheld the AJ’s determination. The proposed removal notice stated: “You were aware that the prior Proposed Discipline and sexual harassment investigation would interfere with your recruitment and placement into the supervisory position that you currently hold.”

Freeland also argued “that the Board disregarded that he did not take his ethics training until after the dates on which he completed iterations of the SF-85P — therefore, he was not on notice that he had to be forthcoming on his SF-85P form.” The Court pointed out that the form specifically required certification that the responses were “true, complete and correct.”

Wow. A supervisor who receives and handles official documents with applicant and employee signatures all day long doesn’t know that one needs to be truthful without the ethics training. I’m still offended when I read this. When you have a few minutes, look at the case. Maybe you will be shaking your head, too.

 

Questionable Hiring Decision Leads to Bad Behavior in HR Office

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By Barbara Haga, February 15, 2022

In August 2020, I wrote about a case involving an HR official who sent racists texts about other employees to subordinates, which the subordinates reported. Jenkins v. Department of Transportation, No. 2019-2075 (Fed. Cir. Aug. 6, 2020).

Jenkins, the HR official, was removed for (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor. The Federal Circuit upheld the charges and the removal.

Jenkins had made several attempts to avoid responsibility. For example, her initial response was that she didn’t send the texts, then she said she didn’t remember sending them, and finally she argued that the texts were sent from her personal phone and, thus, not the agency’s business. None of these attempts worked.

I didn’t think I would be shocked by this kind of HR practitioner lack of candor again, but I recently found a case that I missed in the weekly MSPB report that summer, because this one was issued the very next day. The case is Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir. Aug. 7, 2020).  Before we get to the lack of candor charge, let’s look at the hiring of this individual by DHS.

Freeland’s Story

Freeland was removed in 2017 from the position of Supervisory Human Resources Specialist in the Recruitment and Placement Branch of a DHS Human Resources Operations Center.  Supervisory staffing positions would typically be concerned with ensuring that appointees are qualified for the jobs they are placed in, and that the required drug tests, physicals, and background checks are completed. Basically, their job is to ensure that the recruitment process is carried out properly and that appointments are legal.

Prior to working for DHS, Freeland had held the same type of position at an Army Civilian Human Resources organization. He resigned in May 2015 after he was issued a proposed 14-day suspension for negligent performance of duties. At the time of his resignation, he was also the subject of a workplace sexual harassment investigation. DHS brought Freeland to work on Sept. 20, 2015. Yes, that’s right. They hired a supervisory HR specialist four months after he resigned from another supervisory HR specialist position. His SF-50 stated that he gave no reason for resignation.

Given what transpired with his security paperwork, which led to the lack of candor charge, it seems that DHS hired Freeland without knowing about the prior issues.

I regularly teach classes on interviewing and reference checking. It’s important. You don’t need to bring another agency’s problem child onto your rolls. Freeland’s recent work history should have been a flashing red light to anyone looking at his resume.  He resigned with no reason given.

That’s Strange

A staffing specialist resigns with no reason given? That’s strange. He applies very quickly to come back to the government in a similar position? That’s strange.

Federal employees and staffing folks who understand what it takes to get back onto the Federal rolls from the outside, don’t resign. They apply for reassignments and transfers and promotions.

Did DHS interview Freeland? I would have asked what his reason was for resigning since none was given. He didn’t have to answer. He might have made up some story, but I would ask. I would also routinely ask:

  • Have you been the subject of any sort of performance counseling in the past appraisal cycle? If so, what was the outcome of the counseling?
  • Have you been questioned and/or counseled by your supervisor about any type of disciplinary infraction in the past year? If so, what was the outcome?

Suggested Questions

If I am interviewing for a supervisory position, I would ask something like, “If I contacted your supervisor and asked about your three major accomplishments in your supervisory position, what would he or she say?” I would let Freeland know that I was going to follow up on these issues with his past supervisor.

If he said I couldn’t contact his last supervisor? I would tell him that it’s highly unlikely he would fare well in the rest of the process if I could not validate the information he provided. If he didn’t give permission, I would be very unlikely to hire him.

It’s important to follow up on these questions. In this case, Freeland’s selecting official should be an even higher-level supervisor in HR so he/she/they should have known that an in-depth reference check was needed.

Freeland’s Army supervisor should have been asked the same things.

  • The SF-50 provided doesn’t give a reason for Freeland’s resignation. Are you aware of a reason? (Remember there is no settlement here, so the agency wasn’t prohibited from releasing information by terms of a contract.)
  • Did you counsel Freeland about any type of performance deficiencies in the past appraisal cycle? What happened as a result?
  • Did you have occasion to question or counsel Freeland about a disciplinary matter in the past year? What was the outcome of that?
  • What were the three most important contributions Freeland made as a supervisor?

One of my final questions would be: “If Freeland was eligible for a promotion and you had a vacant job at the higher grade that you could put him in today, would you?” Unless that Army supervisor (who is also an HR Specialist) is a seasoned prevaricator, you are likely to get him/ her/them to spill the beans during the conversation.

Freeland was issued a 14-day suspension notice on negligent performance of duties. We don’t know whether this was negligence related to his staffing/recruitment duties or his supervisory functions, but I think using the in-depth questions I described might get you to a point where you figure out that something isn’t right. As far as the sexual harassment investigation, there may have been no conclusions from that at the time he departed his Army job, but that could have come later. (I will do a column on annotating investigations per provisions included in the NDAA for FY 2017 in the near future.)

I was working with a supervisor on a GS-14 performance plan a week ago, and he was complaining that he had picked up a problem employee from another agency. He was upset with the losing supervisor. He said, “I did a reference check, and that person didn’t tell me the truth.” I knew he was frustrated. It didn’t change anything we were doing, so I didn’t press the issue, but I really wanted to know what questions he asked.

Did he ask, “Is this person reliable?” The answer could be yes. The work is barely acceptable, but they always turn something in on time.

Did he ask, “Is the person regular in their attendance?” The answer could also be yes. The person is always there, but they don’t do much when they are there. The losing supervisor might technically have answered what she was asked truthfully.

Without getting into in-depth areas like the questions described above, your selecting officials may not find out about issues that would cause them to move on to another candidate.

Next month, we will look at what happened once Freeland was brought on board.

[Editor’s note: Would you like to bring Barbara Haga’s Successful Hiring: Effective Techniques for Interviewing and Reference Checking to your agency, either on-site or virtually? contact Training Director Dan Gephart at Gephart@FELTG.com.]

Writing Performance Narratives: It’s Time to Do Better

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By Barbara Haga, January 11, 2022

For agencies that use a calendar year rating cycle, supervisors are in the throes of trying to put together performance narratives now. For some supervisors, this is the worst part of their responsibilities. Why is that?

Sometimes, supervisors don’t fully understand the mechanics of the systems. They don’t understand what the rating levels your agency selected mean and the standards and elements they have written don’t work very well, so trying to measure against them is terribly difficult.  Sometimes they don’t want to tell the employee something he or she doesn’t want to hear – whether that is that the performance is poor or that the performance isn’t at the top, but supervisors are expecting resistance from the individual being rated, or worse yet a rating grievance.

Sometimes, supervisors have been given a limit on who can be rated at what levels, even though that, of course, violates 5 CFR 430.208(c), and they are trying to make things come out right by upper management’s rules. Sometimes, supervisors don’t want to distinguish among employees. It’s easier to say that everyone is at a particular level and avoid the heat.

Problems with writing narratives are not generally a problem with the supervisor’s writing ability, although this argument has been advanced for years, particularly with pay for performance systems.  One comment raised against pay for performance systems was that with pay adjustments tied to ratings, then those who ended up with supervisors who were good at painting the picture of high-level performance would benefit financially throughout their careers, even though others whose performance was just as worthy would lag in their pay rates because reviewing boards wouldn’t judge the less well-written narratives as highly.

I don’t think it is an issue of writing ability. It certainly isn’t a literary contest. I think the problem is often that the supervisor has identified the level they want to “give,” and they are having trouble coming up with the examples to justify it. The horse and cart are out of order. The manager should first be looking at what was accomplished and then determine the rating level.

Level 5 Narratives

The place where this problem is easiest to see is with narratives written for Level 5 ratings. The problem isn’t the writing, it’s the content.

Here’s an example of a narrative written for a Level 5 rating of a GS-12 supervisor. The standard was a garden variety supervisory standard. See if you are convinced by what is written here that the supervisor was performing at Level 5. I have eliminated names of organizations and programs and also have added some notes throughout:

Employee established SOP manual. Volunteered and served on a Committee. [BH note: This was an employee welfare committee that was not relevant to the supervisory role.] Ensured all customers were in receipt of accurate documentation and understood the expectation of any documentation received from Branch. Re-enforced branch policies on how to perform all duties and tasks. Employee coordinated matters concerning internal and external customers of the agency and the office. In addition, coordinated with outside entities directly impacting the agency and office pertaining to the processing of certain actions. Branch increased closure output for CY 2020. [BH note: Much more information was needed here.] Employee ensured all production levels remained sufficient to accomplish the mission. Moreover, employee established standard letters for the staff to use when interacting with customers. Re-enforced importance of accuracy of information to the staff when executing office functions to best represent the branch. Employee continues to be a great asset to the leadership team. [BH note: This platitude doesn’t add anything in terms of documenting exceptional performance.]

So, what’s wrong? This description outlines what should be normal day-to-day supervisory duties. Ensuring that employees coordinate, that production levels are maintained, giving guidance to employees about proper execution of their duties – that should be what we expect supervisors to do. There’s no explanation of how this is exceptional. Here are some matters the supervisor’s supervisor should have addressed:

Developing SOPs: Why was this of particular importance? Were the employees engaged in this? If so, how employees participated or, if not, what the supervisor brought to this task that was exceptional?  Did having the SOP’s lead to benefits during the cycle or could the supervisor anticipate future benefits?

How was communication with customers enhanced? Why were the standard letters noteworthy? How did workforce participate or what did the supervisor do in personally developing them that was noteworthy?

Did any of these initiatives have direct benefits that could be identified?

The narrative almost reads as if the last supervisor wasn’t doing a particularly good job of fulfilling his or her supervisory responsibilities and now someone in the job is taking care of that, That doesn’t necessarily mean that the new supervisor is performing at Level 5.

The lost opportunity in this narrative was the line Branch increased closure output for CY 2020. There should have been documentation of the specifics. Did the closure rate increase by 1% or 10%? The rater should have talked about why this occurred and how the supervisor’s efforts led to that.  The closure rate going up could have been a result of the workers’ efforts, so we should see something about how the supervisor was instrumental in achieving the improvement. What did having more cases closed mean? Does that mean 1) customers got answers quicker, 2) getting answers delivered was cheaper, 3) the backlog was reduced, etc.? What obstacles did the supervisor’s leadership overcome?

The Last Word

I’ve written about this topic for several months now, so this is the last installment.  [Editor’s note: Read Barbara’s other stories on the topic here, here, and here.] If you are a rater or an advisor to raters, perhaps your resolution this year should be to do better.

In the illustration I provided, the rater should have done better. But the reviewing level should have, too. The reviewer should have returned the rating and asked the supervisor to fill in the gaps I identified. It ultimately comes down to the management chain emphasizing what they find important.

Performance System Failures: Lack of Feedback, Poorly Written Narratives

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By Barbara Haga, December 7, 2021

Picking up from last month’s column, we look at who’s responsible for setting the stage for feedback to take place and what a good narrative should include.

It’s common to find language in agency appraisal plans that sets out requirements for which official(s) are responsible for ensuring that feedback is provided to employees and that it is usable feedback.

Most agency plans assign responsibility for ensuring that the appraisal program operates as it should to the head of the component, installation, or operating division. The DoD Instruction on the Performance Management and Appraisal Program (DOD 1400.25, Volume 431) states on page 5 that DoD Component Heads (think Army, Navy, Air Force) are responsible for overseeing “the implementation, application, and evaluation of performance management programs within their respective Components.”

That’s an incredibly broad statement. However, included within it is ensuring that supervisors provide required feedback and that narratives actually contain documentation of accomplishments around the elements that are designated in the plan.  Usually, this responsibility would be delegated further down the line to subordinate levels of managers until we get to raters and reviewers. Here is the language regarding those officials from the HHS Performance Management Appraisal Program (430-1, Sections VIII and IX):

HHS – Rating Officials

  • Manage the full performance cycle from:
    • Clearly communicating expectations to holding employees accountable
    • Monitoring performance to providing regular feedback

HHS – Reviewing Officials

  • Implement performance management policies and practices within the appropriate span of control
  • Ensure that Rating Officials (ROs) carry out their performance management responsibilities within established deadlines and evaluate Rating Officials to ensure accountability for HHS’s PMAP

Here is where the rubber should hit the road. The requirement for the feedback sits squarely on the shoulders of the supervisor, but the enforcement comes from the reviewing level. Yet, I’ve heard countless stories of managers not carrying out these responsibilities without any consequence.

System Failures

Many years ago, I helped an agency rewrite all of their performance elements and standards. It was not a large agency. Also, they had a lot of employees who were attorneys who did the same work, so the task wasn’t as monumental as it might sound. (Don’t get excited, it wasn’t the MSPB). I led a group of employees and a supervisor and a union official who worked on the content of the elements and standards. That part worked great. What they told me about how ratings were done was shocking. I’ve seen a lot more since then and likely wouldn’t be as shocked now.

Here’s their story. I don’t know how many were in this situation, but it was common enough that all of the employees on the team said: “Oh, yeah. That’s how it’s done here.”

The managers of these attorneys, paralegals, and other support staff would not meet with them to discuss ratings. Ever. They would prepare the ratings and wait until the employees left for the day and put the ratings in the employees’ chairs with a note saying basically “sign this and give it back to me.”

I was going to do a briefing for the managers to introduce the new plans and get their feedback on them. I was also covering some basic provisions of the appraisal system in that briefing.  Some of the team members made a slide for me to include that had a red stop sign shape with the words, “Stop Drop and Sign” in white letters across it. They were asking me to tell their supervisors to stop leaving appraisals in empty chairs and not discussing them.

These supervisors were very high level, so the threat of rating them lower because of their failure to provide at least a minimum amount of feedback wasn’t a threat. Apparently, there was no requirement coming from above these supervisors to meet their responsibilities as set in the agency appraisal system.

Another System Failure

The same agency asked me to come back the next year. Their headquarters had told them they had too many Level 5 ratings and they needed to actually write a standard for Level 5. It was my brilliant idea that if I reviewed a sample of those Level 5s, maybe those managers would have done a good job of writing down what a 5 looked like and they would already have done a lot of the work for me.

So, I reviewed the sample. In some cases, they did a good job.  In others, I wanted to cry. After all the work of the team getting the standards done, the training I did on how they should be used, and what their own agency plan required, I found all sorts of problems.

The worst one was written to support a Level 5 on the element about their writing of appeal decisions. The element set measures about adequately researching issues, properly citing precedent cases, writing clearly, raising issues in advance if there was a legal issue that needed to go to their headquarters before the decision could be finalized, and so on. The appraisal for one of the GS-13s started off with a sentence about writing appeal decisions followed by this:

In addition to the outstanding work Mary does for the XXXXXX Branch, she has also volunteered and has done an excellent job in organizing a number of functions for the XXXXXX Division, including the end of year pizza party, after work socials, the end of year Holiday Party, and …

That rating had been approved by the reviewing level and an award paid, at least in some part, based on being the Division party planner. I helped write those elements and standards and I promise there was no event coordinator duties covered in those plans. It does cause one to wonder sometimes.

Next time, we talk about what documenting ratings should be about.

Performance Plans Work When They Include Effective and Timely Feedback

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By Barbara Haga, November 17, 2021

You have a very clear and understandable and reasonable performance plan in place.  That’s great. What now? Is this something you will pull out at progress review time or at the end of cycle and use to provide a rating – or will you use it to provide feedback to employees as the cycle progresses?

When the current version of 5 USC 43 was designed as part of the Civil Service Reform Act, the idea was that management would identify performance elements and the standards by which those elements would be measured in advance of holding employees accountable to meet them.

At that time, appraisal systems in agencies were often very routinized with employees being rated on things like “quantity” or “quality” with no explanation of what that meant for one position as opposed another.  Congress set out requirements in 5 USC 4302(c) regarding communicating the performance requirements to each individual and providing on going appraisal throughout the cycle.

This system was supposed to make things better. It was (and is) a tool that should have improved the effectiveness of appraisals.  It should have improved performance at both individual and organizational levels – the theory being, “if everyone is singing from the same sheet of music” you should get a better result than if each employee is interpreting requirements their own way. The system established in Chapter 43 wasn’t designed to make onerous work requirements for supervisors or to torture employees. Unfortunately, some of that intent seems to be lost in how agency systems have been implemented. (That’s a topic for another column.)

How Was it Supposed to Work?

5 CFR 430.204(b)(1) lists what appraisal systems should include. One of the items is that employees should be evaluated during the appraisal period on their elements and standards.

The regulations at 5 CFR 430.206(b)(2) require that “Performance plans shall be provided to employees at the beginning of each appraisal period (normally within 30 days).” But then what?  The following section in 5 CFR 430.207(b) sets out the requirements for ongoing appraisal:

An appraisal program shall include methods for appraising each critical and non-critical element during the appraisal period. Performance on each critical and non-critical element shall be appraised against its performance standard(s). Ongoing appraisal methods shall include, but not be limited to, conducting one or more progress reviews during each appraisal period.

Progress reviews are good, but feedback once every six months is probably not going to get the job done.

For this system to operate in an optimal way, employees need to have elements and standards that they understand, and they should be receiving information throughout the cycle (not just at progress review time) so that they have a clear picture of where they stand in comparison to that plan.

I mentioned when I wrote about setting conduct expectations that most people will try to comply if they know what the requirements are. The same idea applies here.  Where managers run into difficulties is when they have plans that they can’t even explain. Perhaps they included measurers they can’t actually track. Or, employees were told everything was great during the cycle, but the end of cycle rating is significantly lower.

Sometimes managers have tried to pull in things that were never in the plan to begin with as justification to explain a rating lower than what the employee believed he/she deserved.

Feedback on Accomplishments

On their webpage on feedback, OPM points out how feedback fits into the overall concept of performance management:

Effective and timely feedback is a critical component of a successful performance management program and should be used in conjunction with setting performance goals. If effective feedback is given to employees on their progress towards their goals, employee performance will improve. People need to know in a timely manner how they’re doing, what’s working, and what’s not.

OPM uses the analogy of playing “Hot or Cold” to describe how some managers handle performance feedback. They hand out performance plans and then the game begins:

“You’re cold! Now you’re getting warmer! You’re HOT!” Even children playing the popular “Hot or Cold” game know that to perform well (find the hidden object) people need to be told how they’re doing. Without feedback, you’re walking blind. At best, you’ll accidentally reach your goal. At worst, you’ll wander aimlessly through the dark, never reaching your destination.

This is so fundamental it seems I shouldn’t have to say it. But playing “hot or cold” with performance unfortunately is real. Think about these types of rating discussions:

Scenario A

Employee:  I appreciate the nice words you included in the narrative for this Level 4 rating, but I’d like to do better on my next rating. What would it take to get a Level 5?

Supervisor: (Uncomfortable wiggling in seat) Well, umm. I can’t say for sure. I would have to see what you do next year, but I’ll know it when I see it.

Scenario B

Employee: You mentioned in the narrative that the reports you’ve listed didn’t have citations to the most recent guidance, but some of these are from four months ago.  Why didn’t you tell me then?

Supervisor:  I was saving up the information so we could have this meeting.

Performance Management IRL

IRL means “In Real Life.” Work is real life for a portion of every employee’s day.  Performance management is about ensuring that employee performance is meeting minimum requirements and hopefully doing much more than that. By having employees meet performance requirements, then the organization should be meeting the mission, hitting the goals, taking care of the needs of the serviced population, and/or giving the customers what they are due. It is not an esoteric exercise. It’s about giving clear guidelines and then letting people know whether they met them or not.

Employees may do better because they figure out on their own how to achieve more, but a manager can get them there more quickly if they address things when they happen. That’s not just big errors, either. It could be just day to day things like, “this paragraph could be clearer if you added this information,” or “the data you included is absolutely accurate, but too much detail for this audience,” or “there is an assumption in your analysis that isn’t explained and needs to be addressed.”

It’s just not honest not to give feedback based on what the person did or didn’t do as measured by the performance plan.