BOARD REVERSES DENIAL OF WITHIN GRADE INCREASE WHERE GOVERNMENT CORPORATION FAILED TO FOLLOW ITS OWN INTERNAL RATING PROCEDURES IN RATING APPELLANT “BELOW EXPECTATIONS”

The Appellant, Svetlana Oulianova, was an Actuary with the Pension Benefit Guarantee Corporation (“PBGC”). Her performance was rated as “below expectations” for fiscal year 2010, and PBGC denied her within grade increase (“WIGI”) on that basis. The Appellant first sought reconsideration within the PBGC, which was denied. The Appellant then appealed the WIGI decision to the M.S.P.B., and after a hearing the Administrative Judge issued an initial opinion affirming PBGC’s decision, finding that the decision complied with 5 C.F.R. §§ 430.102-.405, that the Agency’s performance standards were valid, and that the Agency communicated the performance standards to the Appellant.

 

 

The Board reversed the Administrative Judge’s initial decision, noting that PBGC is a government corporation, and therefore is not bound by the requirements of Chapter 43. The Board further noted that employees of agencies not covered by Chapter 43 are evaluated based on performance appraisal requirements established by the agency. Therefore, in order to prevail, the Board stated that PBGC had to demonstrate by substantial evidence that the Appellant failed to perform at an acceptable level of competence based upon PBGC’s performance appraisal requirements, citing 5 C.F.R. § 531.409(b) (regarding acceptable level of competence determinations) and 5 C.F.R. § 1201.56(a)(1)(i) (regarding burden and degree of proof).

The Board found that PBGC failed to provide substantial evidence to support rating the Appellant’s performance as “below expectations” for fiscal year 2010. The Board noted that PBGC Actuaries were rated on a 5-tier performance scale, with five being the highest and one the lowest. A rating of “2,” which was the rating given to the Appellant, was considered “below expectations.” The rating given to the Appellant was based on ratings of 2, 3 and 3, respectively, on three objectives assigned to the Appellant, and those objective scores were, in turn, based on ratings in underlying activities to each objective. The objective in which the Appellant received a rating of 2, Case Processing, consisted of five underlying activities. However, the Board found that the PBGC based its rating of the Appellant in the Case Processing objective was based solely on activities in two of the five underlying categories, and the Agency only rated the Appellant on some, not all, of her cases. Further, the Board noted that PBGC had established a mathematical formula to rate its Actuaries on the Case Processing objective, but PBGC did not even attempt to use the formula to rate the Appellant, instead basing the rating on “a vague notion supported by anecdotal examples that the appellant needs to be more accurate and punctual with her work.”

Based on these findings, the Board held that PBGC had failed to provide substantial evidence supporting its evaluation of the Appellant’s performance in the Case Processing objective, and thus that PBGC failed to provide substantial evidence to support the Appellant’s overall performance rating for fiscal year 2010 and its decision to deny the Appellant’s WIGI.

The case is Oulianova v. Pension Benefit Guaranty Corporation, 2013 M.S.P.B. 55 (July 22, 2013), and is available here.

This case law update was written by Steven C. Lippman, associate attorney at the law firm Shaw Bransford & Roth, PC.

Posted in Case Law Update

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