Tag Archives: “colorblindness”

Federal Reserve Board: Brief for case involving claim of racial discrimination; Artis v. Bernanke, 2011 decision of the D.C. Circuit Court of Appeals

Author’s note: This post will differ from previous posts in that it will feature a longer exposition. It is important to be a little longer because the case involving the class plaintiffs and the Federal Reserve Board has been ongoing for about 18 years. This case before the D.C. Circuit was decided in January 2011. On September 29, 2014, the district court denied class certification to the plaintiffs. See Artis v. Yellen, Civil Action No. 01-400 (EGS). The case remains active as of the date of this post.

Artis v. Bernanke, No. 09-5121 (D.C. Cir. 2011)

Summary: D.C. Circuit Court of Appeals held that class members claiming racial discrimination at the Federal Reserve Board (Board) did satisfy the Board’s Equal Employment Opportunity (EEO) regulations requiring a counseling session with the Board’s EEO office because the class did provide information about specific instances of discrimination and offered corresponding allegations of discrimination against individual class agents. The D.C. Circuit determined that such information was enough for the Board to investigate and try to resolve the class claims.

Facts: The plaintiffs, a class of secretaries currently and formerly employed by the Board, claimed that the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.).

On January 15 and February 13, 1997, several class members, with counsel, initiated counseling with the Board, in accordance with Board regulations 12 C.F.R. §268.104(a). (Board EEO counselors, with a Board lawyer, held group counseling sessions on these days.)

On January 17, 1997, class members, responding to the Boards request for information, submitted 14 identical copies of a document, “Resubmission of Class-Action Complaint.” In the January 17 document, the secretaries alleged a systemic and pervasive pattern of discrimination against African American secretaries by the Board. Particularly, that the Board–

  • Paid them lower salaries than non-minority secretaries,
  • Awarded them fewer and smaller bonuses,
  • Granted them fewer promotions,
  • Deflated their performance appraisals,
  • Denied them privileges and training that non-minority secretaries enjoyed,
  • Unfairly enforced leave procedures against them, and
  • Discriminated against them in the quantity and quality of work assignments.

Between January 24 and February 18, 1997, Board EEO counselors met individually with nine secretaries, in which those secretaries confirmed the general allegations in the January 17 Resubmission document, and some of them recounted specific instances of discrimination from personal experience. The Board’s EEO counselors prepared reports based on the notes they took in these counseling sessions.

The class members filed an administrative complaint on March 3, 1997, but the Board dismissed the complaint on July 23, 1997. And, the U.S. Equal Employment Opportunity Commission affirmed the Board’s dismissal on November 18, 1998. The class filed a complaint in the federal district court on February 22, 2001.

The Board filed a motion to dismiss, which the district court denied. The district court ordered discovery on the issue of exhaustion, “whether the plaintiffs have satisfied their obligation to engage in counseling” and whether “the administrative counseling process was a futile exercise,” citing Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).

After five years of contentious discovery, the Board renewed its motion to dismiss in 2005, which the district court granted on January 31, 2007, holding that the court lacked subject matter jurisdiction over the class because the class members failed to exhaust the counseling requirement because the class failed to provide any meaningful information about specific instances of discrimination. The class members appealed.

Holding: The D.C. Circuit, vacating the decision of the district court and remanding the case to the district court, held that where counseling produces sufficient information to enable the agency to investigate the claim, that counseling purpose has been served. The court determined that the class members did provide meaningful information about specific instances of discrimination in the January 17 Resubmission document and offered corresponding allegations of discrimination against individual class agents. Such information, the D.C. Circuit reasoned, was enough for the Board to investigate and try to resolves the claims of the class members. (See pages 9-12 of the opinion for the specific allegations and the individual experiences of discrimination.)

Moreover, the court stated that it reviews challenges to dismissals for lack of administrative exhaustion de novo, as it is a question of law, citing Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800 (D.C. Cir. 2010).

Analysis: The purpose of counseling, the court explained, in the Title VII context, is clear from the text of the Board’s regulation–to enable the agency and its employee “to try to informally resolve the matter,” citing 12 C.F.R. §268.104(a), Wilson v. Peña, 79 F.3d 154 (D.C. Cir. 1996), and Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 2009).

The court noted that Title VII’s exhaustion requirement should not be read to create useless procedural technicalities, citing President v. Vance, 627 F2d 353 (D.C. Cir. 1980). An agency risks misusing the counseling requirement, the court explained, when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination.

Claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees, the court noted. The court continued, stating that such an analysis will only be possible after employees obtain data from their employer, informally or through discovery.

Thus, the court concluded that it would be perverse to dismiss a complaint for failure to provide adequate detail in counseling when all of the relevant data is in the employer’s exclusive control.

In addition, the court noted that the class status of the plaintiffs allows a representative plaintiff to satisfy the counseling requirement on behalf of similarly situated class members. As a result, the entire class exhausted administrative remedies by virtue of the class agents successful completion of counseling.

Moreover, the court noted in a footnote that failure to exhaust administrative remedies under Title VII is not jurisdictional because Title VII does not include a clear statement of that intent.

CFPB: OIG’s Wordy, Pusillanimous Audit Report (2015-MO-C-002) Mostly Non-Responsive to Congressional Questions; Failed to Assess Whether CFPB Practices Contribute to Systemic Discrimination

The Office of the Inspector General (OIG) for the Consumer Finance Protection Board (CFPB) recently issued an audit report stating that the CFPB can enhance its diversity and inclusion efforts. I am deeply disappointed with this report as it dares to be self-satisfied and committed to the status quo of the CFPB’s operations. The reality is that the report was produced by external agency forces, the American Banker article and the Democratic members of the House Financial Services Committee (see pages 64-65 of the report), not through the ongoing work of the CFPB’s OIG.

Overall, however, with current circumstances going on in the nation, such as the events in Ferguson, Missouri (and the significant systemic discrimination practiced there), this is the time for more in-depth investigation than is present is this very light, analytically speaking, yet very lengthy and wordy, report from the OIG.

Furthermore, the OIG’s audit report is a public document, yet it is written in a way that the findings could only be understood by a CFPB insider. This outcome is problematic because the taxpayer must be able to understand on what programs tax dollars are being spent, for what reason, and with what effect. For example, a thorough explanation of the performance appraisal process (before and after the American Banker article), including its attendant policies and management’s actions with it, would have been helpful to the reader.

The third-party report, produced by DCI Consulting (pages 75-101), however, is more responsive to examining structural discrimination at the CFPB through its practices. (This blog post is focused on the OIG-authored portion of the report.)

The report’s self-satisfaction comes from the report’s authors use of CFPB operations when it may well be those operations that themselves contribute to the problems with diversity and inclusion. The CFPB’s OIG does not even assess this possibility, even though the American Banker article already pointed out issues with the performance evaluation process. Given the changes that have occurred, with the leadership of Director Richard Cordray and some members of Congress, well before the issuance of the report, the OIG should have performed this assessment. Its absence is notable. (It is exasperating that Director Cordray must lead all of the change himself, without reliance on the well-paid (perhaps overpaid) high-level management staff.)

[Author’s note: A mere mention that the OIG-authored report’s scope is (severely) limited and then producing a recitation of the Office of Personnel Management’s definition of workforce diversity and inclusion seems to be a convenient escape hatch (page 2), one that I refuse to grant to this unacceptable audit report.]

Hearings of the House Financial Services Committee, Oversight and Investigations Subcommittee, CFPB, 2014
Date Title of Hearing Witnesses Hearing Report Number
4/2/2014 Allegations of Discrimination and Retaliation within the Consumer Financial Protection Bureau Ms. Angela Martin and Ms. Misty Raucci 113-72
5/21/2014 Allegations of Discrimination and Retaliation within the Consumer Financial Protection Bureau, part 2 Mr. Benjamin Konop and Ms. Liza Strong 113-81
6/18/2014 Allegations of Discrimination and Retaliation within the Consumer Financial Protection Bureau, part 3 Mr. Ali Naraghi and Mr. Kevin Williams 113-85
7/30/2014 Allegations of Discrimination and Retaliation and the CFPB Management Culture The Honorable Richard Cordray 113-96

Moreover, the basis of the report being an audit report and not an analytical report makes it non-responsive to the questions presented by the American Banker article and the questions from the members of the congressional committee. The issue of diversity and inclusion is not a matter found in financial documents and spreadsheets. It is found in examining agency activities and evaluating them with the applicable laws and regulations. Appendix B (pages 66-68) demonstrates the extremely thin foundation for the report.

The overall goal of the audit report was to collect various elements, then “judgmentally” select a point from one of them to use as a test against a CFPB human-resources-related activity. This method is non-responsive to the questions posed by the congressional committee because the issue of whether the activity itself is causing the problem is left unquestioned and unanswered. With this approach, I find it difficult to see why a CFPB employee would report anything regarding diversity, inclusion, or systemic discrimination to this OIG.

The report authors merely searched for whether there were controls to prevent or detect bias or discrimination. A laudable goal, but the methods used to determine such controls are inadequate. For example, the report cites exit survey data (page 54), and that the report authors found a low level of people leaving reported discrimination as a factor. The CFPB’s Office of Minority and Women Inclusion, or OMWI, stated that its goal is to reduce the perceptions of discrimination and discrimination to zero.

Consumer Finance Protection Bureau’s Exit Survey Data, March 2012 – September 2013
Separations during period 225
Employees that submitted survey 96
Employees that did not submit a survey 129
Percentage taking survey 0.4267
Percentage not taking survey 0.5733

The exit survey alone is insufficient to be a control because the exiting employee simply has no obligation to provide such information to the CFPB. Second, to assess employee perceptions at the time of departure is insulting to the employee and shows a definite lack of effort by the organization to ensure that it is acting fairly and equitably. Third, no mention is made about the effect of so many people electing not to provide exit surveys and its effect on the relevancy of data derived from such a survey.

As a result of the CFPB’s OIG being unable to address issues of systemic discrimination, the CFPB and the Federal Reserve Board should be expected to review these issues more vigorously and be directly accountable to the Congress for successful implementation and compliance with all of the civil rights laws and regulations as well as the federal merit principles.

Authors of CFPB OIG Audit Report, 2015-MO-C-002
Name Title
Anna Saez OIG Manager
Ed Fernandez Senior Auditor and Project Lead
Victor Calderon Senior Forensic Auditor
Saurav Prasad Senior Auditor
Amanda Sundstrom Auditor
Megan Taylor Auditor
Dennis N. Wolley Jr. Audit Intern
Timothy Rogers Senior OIG Manager for Management and Operations
Melissa Heist Associate Inspector General for Audits and Evaluations

U.S. Judiciary: Chief Justice John Roberts Issues 2014 Year-End Report

John Roberts, Chief Justice of the United States, issued a 2014 year-end report on the judiciary.

The Chief Justice focused on the U.S. Courts and their adaptation to improvements in information technology. Essentially, the Chief Justice explained that the federal court system is and will be slow to adopt new technology to its operations. The goal of the federal court system is to provide litigants fair and efficient access to courts, the Chief Justice stated. The Chief Justice made a reference to the tortoises on the bases of the Supreme Court’s exterior lampposts as a symbol of the judiciary’s commitment to constant but deliberate progress in the cause of justice.

[Comment:  But a tortoise’s pace is very slow, and it is a presumption that the slow pace is for the cause of justice. It can easily become an obstacle to progress as well (in 2014, in particular, the issues with police authority and its effects on the community as well as the judiciary’s interaction with law enforcement and citizens (that is, grand juries) make this point (of the court’s approach as being an obstacle to progress) salient during this period of assessing the fairness of the court system to all citizens).

The Court is as reliant on the consent of the governed as other government institutions, but it is interesting that the Chief Justice did not discuss this aspect in the report.]

Continuing with the report, the Chief Justice identified several technological improvements that the federal court system has adopted:

  • Computer-assisted legal research.
  • Computer-assisted graphics, video, and other technological aids to facilitate communications with judges and juries in the courtroom.
  • Automation of the federal court’s filing, acceptances, and retrieval of documents that each court receives each day (electronic case filing and case management (CM/ECF).
  • Public Access to Court Electronic Records (PACER) allows the public to find court records in a way not possible before CM/ECF.

For the future, the Chief Justice noted that the Administrative Office of the U.S. Courts are planning to develop an updated CM/ECF, which will add a central sign-on feature. Also, the Chief Justice added, the future plans include, for example, automatic calendaring notices to interested parties.

The Supreme Court will develop its own electronic filing system in 2016 or so, the Chief Justice explained. The Court will provide further information about its plans in the coming months, the Chief Justice stated.

[Note 1: Judicial pay has remained at the 2014 level for 2015. See Executive Order 13655, schedule 7 (https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/pay-executive-order-2014-adjustments-of-certain-rates-of-pay.pdf).

Position Pay in 2010-2013 (in dollars) Pay in 2014 (in dollars) Pay in 2015 (in dollars)
Chief Justice of the United States 223,500 255,500 255,500
Associate Justices of the Supreme Court 213,900 244,500 244,400
Circuit Judges 184,500 211,200 211,200
District Judges 174,000 199,100 199,100
Judges of the Court of International Trade 174,000 199,100 199,100

]

In the appendix to the report, the Chief Justice provides and explanation of the workload of the judiciary. I will focus on the Supreme Court’s workload. Six per curiam decisions were issued during this term in cases that were not argued.

2005 2006 2007 2008 2009 2010 2011 2012 2013
Filings 8521 8857 8241 7738 8159 7857 7713 7509 7376
In forma pauperis 6846 7132 6627 6142 6576 6299 6160 6005 5808
Paid docket 1671 1723 1614 1596 1583 1558 1553 1504 1568
Cases:
argued 87 78 75 87 82 86 79 77 79
disposed 82 74 72 83 77 83 73 76 77
signed opinions 69 67 67 74 73 75 64 73 67

Futility of “Colorblindness”: Edward Blum Uses Legal Complaint to Express Personal Pique, Appeal College Admissions Decision; Affected Student Can Simply Apply for Transfer to University

Edward Blum, an apologist for “colorblindness”, supported the filing of two lawsuits, essentially arguing that the White plaintiff was discriminated for his race because the student did not get into a desired university–the University of North Carolina at Chapel Hill (UNC-Chapel Hill). However, rather than filing a 65-page complaint, Students for a Fair Admissions, Inc. v. University of North Carolina, the student (who was admitted to another university) could simply apply for a transfer to UNC-Chapel Hill. Crucially, the legal complaint ignores this option.

As I have argued in this blog, “colorblindness” considers all humans to be equal, but the term ignores that social power is concentrated solely within the White race in the United States of America. No proponent of “colorblindness” dares to admit the thrust of Justice John Marshall Harlan’s argument in Plessy v. Ferguson, 163 U.S. 537 (1896), affirming White superiority and control, or to cite the population numbers (by race) in the U.S. Census. As a result, colorblindness apologists, the Blum-sponsored “colorblindness” argument as well as many similar apologists-have stunning insensitivity for the Black people of the United States who bear the tremendous burden of suffering from the injustice of their “colorblind” “ideas” and have little to no social power to stop the wrongful and abusive actions of the social majority.

United States (population: 308,745,538) (2010 Census)

Race Percentage of population Number
White 72.4% 223,553,265
Black 12.6 38,929,319
Native American 0.7 540,013
Asian 4.8 14,674,252

North Carolina (population: 9,535,483) (2010 Census)

Race Percentage of population Number
White 68.5% 6,528,950
Black 21.5 2,048,628
Native American 1.3 122,110
Asian 2.2 208,962

In addition, as I read through the Blum-sponsored complaint, I stopped on table b in paragraph 55. The data are presented in alphabetical order. But, the data should be presented in order of significance. When the data is sorted from largest number of admissions to the lower number of admissions, Whites are shown to have received 61% (3616) of the 5899 seats, and Asians received 17% (1018) of those seats. These two groups account for 78% of the admitted persons. In comparison, Blacks received 10% (618) of those seats. The lack of clarity in presenting the facts makes me doubt the credibility of the entire complaint.

Table B, as presented in the legal complaint–

Table B
Average GPA and SAT for All Admitted Students (2012)
Admitted GPA SAT
American Indian or Alaska Native 103 4.38 1300
African American 618 4.32 1229
Asian/Asian American 1018 4.63 1431
Hispanic 415 4.51 1319
Pacific Islander 6 4.51 1393
White 3616 4.56 1360
Not Reporting 123 4.46 1344

Table B, adjusted by blog author, in order of significance, by admission number and race–

Average GPA and SAT for All Admitted Students (2012) (in order of admitted persons)
Admitted Percentage of admitted persons GPA SAT
White 3616 61% 4.56 1360
Asian/Asian American 1018 17% 4.63 1431
African American 618 10% 4.32 1229
Hispanic 415 7% 4.51 1319
Not Reporting 123 2% 4.46 1344
American Indian or Alaska Native 103 2% 4.38 1300
Pacific Islander 6 1.75% 4.51 1393
Total 5899

The reader will note that the average GPA and average SAT score is lower for Whites than for Asians, but Whites still received 61% of the admissions.

The complaint, therefore, is one of personal pique that the applicant did not gain admission to a first-choice school.

However, the student, a college student elsewhere, is not locked out from UNC-Chapel Hill, a large state university. The student can apply for admission as a transfer student. The transfer program at UNC-Chapel Hill appears to be extensive. The student should use this option before a lawsuit, as the student could well achieve admission by doing so.

Futility of “Colorblindness”: The n-word Signifies Dehumanization; No Good Can Come from Its Use

With shock (so distressed, I nearly called to cancel my subscription), I saw that the Washington Post, through reporters Dave Sheinin and Krissah Thompson, as well as Lonnae O’Neal Parker, had published an article about the n-word, the vile English word created to enshrine the idea that Black people are not human beings but rather mere property to be bought and sold. The United States (in particular, the White social control structure), regardless of civil rights laws, has never fully accounted for and compensated to Black people for the blood, sweat, and tears resulting from the abuse that has been imposed upon the Black people of the United States of America.

There is significant resistance to do such accounting and compensation, yet there is an eagerness by the same White structure to provide many excuses for the cruel word of Black dehumanization. This time, through the article, it is posited–

  • that since Black young people use some variant of the disgusting word among themselves,
  • that since “Black singers” use (*abuse*) the abhorrent word in their hip-hop lyrics (sold predominately to Whites and worldwide (people learning English hear this word and learn it like other vocabulary–very sad and distressing), in a music industry controlled by Whites,

the horrible word has lost its sting and thus can be used by all.

Except, White people maintain their humanity (and psychological ownership of “free and equal” Black people), while Black people again have their very humanity on the block to be haggled over, debated, bought, and sold. Simultaneously, the humanness of Black people is disregarded and scattered to the winds. These points fuel the volcanic reaction that bursts forth when a White person deigns to use the word and strong offense is taken by a Black person. [In addition, the swastika or the holocaust would never be considered for such a redefinition, yet it is licit for Black people’s humanity to be played with like dominoes.]

With this word and the bloody context surrounding and involving it

  • no young person,
  • no singer,
  • no newspaper,
  • no journalist,
  • no agent provocateur,
  • no athlete,
  • no actor

nobody–can sanitize (or dare sanction the use of) this ugly word! There must be a full accounting of the blood spilled and denied humanity of Black people first (current time included). Once that is done, then the society will be able to take on the word, which if the corrective action would have been placed into effect, the word would disappear from the lexicon.

I have no hope that this accounting will ever occur; I am reaching-ever closer-the point of giving up on this country. The hapless government response–at all levels, state and federal–with the events in Ferguson, Missouri, with the killing of Mr. Michael Brown, Jr. (his parents have had to seek justice from the United Nations Human Rights Committee against Torture in Geneva, Switzerland), serves as an tiny example of what would happen with of a nationwide focus on accounting for the past and present racial abuse against Black people and to finally recognize the innate humanity of Black people in the United States of America.

{Postscript: There was discussion about the National Football League assessing fines for the use of the vile English word on the football field (ostensibly by Black players toward other Black players). The fact is the football field can be considered a workplace and as such the civil rights laws applicable to the workplace should apply.}

Dick Grote: Favors Unjust, Unfair “Rank and Yank” Performance Management, Despite Practical Evidence that Rank and Yank Is a Failed System

Dick Grote, owner of Grote Consulting (“strategy-based performance management”), spoke on NPR’s “The Diane Rehm Show” on March 19, 2014.

I have covered Grote’s unworkable and organizationally destructive “rank and yank” system in this blog. It is the sole basis of his company’s existence–to profit himself and also managers and those employees deemed “high performers” at a cruel and immoral expense of other people’s (80% of the workforce) livelihoods–so it is unsurprising that he zealously defends it in the face of two organizations (Adobe and CEB) that stopped using it because rank and yank inhibits collaborative work practices.

At its best, rank and yank encourages unjust, artificial comparisons of employees with each other (not their work assignments) and permits total and unaccountable managerial power over powerless subordinates. Rank and yank is a system that is properly avoided by rational firms. In addition, employees are not rated against goal achievement (absolute comparison), they are rated based on their relative worth to the company compared with another employee (relative comparison). Grote deceptively skirts the issue knowing that deep analysis of relative comparision will lead to people rejecting it.

Thus, I was disappointed, but not surprised, that Grote uses double talk to present rank and yank’s inherent negativity (displayed in red font color) as positive (dark blue font color).

GROTE

11:17:12

Yes, it is. And what forced ranking is is a pejorative term, and actually, organizations have almost abandoned the use of the term, forced ranking, because it carries so much negative baggage. But the fact is, what forced ranking involves is relative comparison. When we look at evaluating how well a person on a job is done, there are basically two ways we can do it. One is, absolute comparison. How good a job did George do against his goals and objectives and expectations? The other way we can evaluate the performance is through relative comparison.

GROTE

11:17:50

How well did George do compared with how well Mary and Sam and Bill did? And I think both of those are important spectacles to have in the lens, to understand just how well someone has performed.

The issue that causes rank and yank to be a flawed system is managers are given absolute power (in secret) to rate others without facing any sort of accountability. Indeed, Grote expects that the managers will determine for themselves whether they are objective and fair in giving their opinions over a subordinate. The power disparity in the relationship permits rampant, unchecked abuse of the employment relationship in the rank and yank process. [Note in the discussion, below, how Grote pivots from the observation that a supervisor’s opinion is subjective to a nongermane discussion of objective and fair. Without accountability for their “opinions” on subordinates, “opinions” from these supervisors will most likely be unobjective and unfair.]

 GROTE

11:26:00

Yeah, well, let’s take a look at the fundamental question, what is a performance appraisal? And the answer to that question is, a performance appraisal is a formal record of a supervisor’s opinion of the quality of an employee’s work. And right away that word opinion seems to vibrate in neon lights because people believe that if it’s someone’s opinion, then it’s necessarily subjective.

GROTE

11:26:30

And, Frank, every time I hear someone say that, I feel sad because what that says is that the person doesn’t know what the word objective means, what it means to be objective. What it means to be objective is to be uninfluenced by emotions or personal prejudices. It means to base your opinion on facts and present those facts — present the examples factually. It means to be fair. And so of course what we want our supervisors to be is to be fair in rendering their opinions.

In order to be truly objective and fair, one solution is to have the subordinate rate the supervisor. This check will resolve the power disparity and provide instant accountability.

Performance Management, Civil Service, & Merit Principles: Discussions Must Be Guided with Sober, Detailed Research and Commitment to Fair & Equitable Treatment; Management Abuse of Authority Must Also Be Addressed

All discussions of performance management within the federal government’s civil service must be done with in-depth, sober, and detailed research and analysis in order to ensure that any system proposed

  • is faithful with the merit principles and all laws of the United States of America,
  • fair and equitable to all those who are subject to the system, and
  • addresses management abuse of authority toward subordinates.

Moreover, vague mentions of “poor performers” must be avoided and replaced with substantiated and detailed examples.

The focus of the Government Executive article, “Wielding the Ax,” seems to be based on the “trials” of the manager trying to fire an undefined “poor performer.” Yet, the article merely passes over a tremendous problem identified by the Merit Systems Protection Board (MSPB): The managers cannot identify proper standards. (Emphasis, added, mine.)

In a 2009 report (quote is from the press release), MSPB said that complexities involved in performance management—not the law—present the greatest challenge to handling poor performers. “The agency is required to articulate a performance expectation, measure it and document the extent to which the employee has failed to meet expectations,” said the report. “According to an MSPB survey of proposing and deciding officials, this is where the actions become difficult. Our survey respondents told us that supervisors have difficulty creating standards for performance and documenting how well employees are meeting those standards.”

If management cannot identify standards, how can they rate performance? Lacking standards, it seems that managers are rating on whim, a situation that is unfair to employees.

The managers cited in the Government Executive article seemed to be focused on removal rather than coaching proper performance. Moreover, both managers cited are no longer with their government agencies. [John Palguta, vice president of policy at the nonprofit Partnership for Public Service. Palguta also has worked at the Office of Personnel Management and the Merit Systems Protection Board, the agency that adjudicates appeals from employees related to their job status. Henry Romero, who was associate director for workforce compensation and performance at OPM during the Clinton administration and was reported to be a senior adviser at Virginia-based consulting firm Federal Management Partners.]

In addition, and in fairness, the issue of managerial abuse of power toward subordinates must also be considered in any discussion of performance management. There are very few avenues for redress for suffering employees (especially if the avenues of redress–human relations, EEO, upper-level agency management–agree with or do not care about the employee’s suffering of abuse). Strengthening managerial power to discipline or remove–with severe financial consequences to the affected employee–without considering the plight of these affected persons would be a tremendous injustice.

Moreover, the discussion of performance management flies off in a tangent upon mention of “poor performers.” Yet, this mention of poor performer is not substantiated with clear, specific definitions or examples. The discussion will be best served with serious and detailed research and analysis identifying all of the issues from all viewpoints and with pinpointed, transparent, fair, and equitable solutions.