Dealing with Performance Ratings You Believe Are Unfair or Discriminatory: Guidance from a Maryland Federal Employment Attorney

A performance rating you disagree with is not just a bruised ego. It can cost you a within-grade increase, disqualify you from an award, follow you into a promotion package, and weaken your standing if a reduction in force reaches your competitive area. Employees at SSA, NIH, CMS, and the defense commands across Maryland ask a Maryland federal employment attorney the same question after a disappointing appraisal: can anything be done about it? Usually yes, though the route depends on why the rating is wrong and whether you are in a bargaining unit.

Can I appeal a federal performance rating I believe is inaccurate?

A rating of record standing alone is not appealable to the Merit Systems Protection Board. Your options are an agency administrative grievance under 5 CFR Part 771, a negotiated grievance if you are in a bargaining unit, an EEO complaint if a protected characteristic drove the rating, or an Office of Special Counsel complaint if it was reprisal for a protected disclosure.

Which door you pick matters, because most close on each other. Under 5 U.S.C. 7121(d), a bargaining unit employee generally must choose between a negotiated grievance and an EEO complaint on the same discrimination issue, and the first filing controls. The negotiated grievance is often stronger, since it can reach arbitration and an arbitrator can order a rating changed. Administrative grievances stay inside the agency, frequently decided by someone in the same chain of command.

What must the agency have done before it can rate you at all?

Two requirements are worth checking first. You must have been under an established performance plan for at least 90 days in the appraisal period to receive a rating of record, under 5 CFR 430.208(a). Critical elements and performance standards also have to be given to you in writing, ordinarily within the first 30 days of the cycle under most agency policies. A critical element is a duty so important that unacceptable performance on it alone makes your overall performance unacceptable.

If you were rated against expectations never put in writing, or the standards shifted mid-cycle, or you transferred in two months ago, that procedural defect may be your most effective argument. It requires no proof of anyone’s motive.

What does a lowered rating actually cost?

More than most employees realize:

• A within-grade increase requires performance at an acceptable level of competence under 5 U.S.C. 5335, and a negative determination can be reconsidered under 5 CFR 531.410 on its own timeline.
• A quality step increase requires the highest rating level in the agency’s system, per 5 CFR 531.504.
• Retention credit in a reduction in force comes from your last three annual ratings of record in the preceding four years, under 5 CFR 351.504. A Level 5 adds 20 years of credit, Level 4 adds 16, Level 3 adds 12. One dropped rating can move you down a retention register.

Is an unacceptable rating the same thing as a performance-based removal?

No, but it is the first step toward one. Before an agency can demote or remove you for unacceptable performance under Chapter 43, it must give you an opportunity to demonstrate acceptable performance under 5 CFR 432.104. No minimum length appears in regulation and agencies commonly run 30 to 120 days, though MSPB case law requires the opportunity to be reasonable and the agency to help you during it. If the agency then proceeds, you get at least 30 days advance written notice, a chance to reply, a written decision, and an MSPB appeal within 30 days.

The detail that surprises people is the burden of proof: in a Chapter 43 performance action the agency needs only substantial evidence under 5 CFR 1201.56, a lower bar than the preponderance of the evidence required in a Chapter 75 misconduct case. That is why agencies route problem cases through performance rather than discipline, and why the record you build during the opportunity period is worth the effort.

When is a low rating discrimination or retaliation rather than a bad judgment call?

When comparable employees with the same critical elements and similar work product were rated higher, and the difference tracks a protected characteristic or protected activity. Motive is rarely admitted, so these cases are built on comparators, timing, and inconsistencies between the narrative and the scores.

A performance evaluation under Chapter 43 is expressly listed as a personnel action in 5 U.S.C. 2302(a)(2)(A), so a rating lowered after a protected disclosure can support a reprisal complaint with OSC and an individual right of action at the MSPB if OSC does not act within 120 days. On the EEO side, you have 45 calendar days from receiving the rating to contact an EEO counselor under 29 CFR 1614.105(a)(1). Ratings that cost a bonus, a step increase, or promotion eligibility are easier to establish as materially adverse than a rating with no tangible consequence.

What should I do in the first two weeks after receiving the rating?

Sign it and submit a written rebuttal. Your signature acknowledges receipt and nothing more, and refusing to sign gains nothing while making you look uncooperative in a record others will read later.

Then reconstruct the year from your own files: the performance plan as issued, the mid-year progress review, emails praising specific work, case counts or closure figures, and work you took on beyond your elements. Ask the rating official in writing what documentation supported each element score. A thin answer becomes the center of the grievance. Note where agency documents live rather than forwarding them to a personal account, which can invite a misconduct charge that overtakes your complaint.

When should you contact a Maryland federal employment attorney?

Before you choose a forum, because that choice is usually irreversible. A Maryland federal employment attorney can read the appraisal against your performance plan, identify whether the stronger argument is procedural, comparative, or retaliatory, and point you to the venue that can change the rating rather than one that merely records your objection. Bring the appraisal, the plan, your prior two ratings, and the dates you received each. The window to preserve every option is measured in weeks, so an early call beats a well-researched late one.