On May 13, the Partnership for Public Service hosted a FedSupport webinar featuring two former Merit Systems Protection Board leaders to discuss the current role of the MSPB and to help federal employees better understand how to navigate the appeals process.
Attendees submitted significantly more questions than we could address during our webinar. To answer them, we sat down with Ray Limon, former vice chairman of the MSPB and founder of Merit Service Advocates.
Other blogs in this series can be viewed here, including blogs on MSPB processing, authority and independence; employee rights and documentation, as well as specific employee situations such as reductions in force, agency eliminations and probationary period employees.
How does the MSPB distinguish between legitimate performance-based removals and actions that may be pretext for other motives?
In a performance-based removal, the agency must demonstrate:
- The employee failed to meet a critical element at the fully successful level.
- The employee was given a performance improvement plan and a reasonable opportunity to improve.
- The employee continued to fail after the plan period.
For each of these elements, the agency bears the burden of proof by substantial evidence.
The performance-removal process described above is subject to significant changes the Office of Personnel Management has proposed, although the proposal is not yet final.
On Feb. 24, 2026, the Office of Personnel Management proposed a rule that would, among other things, allow agencies to cap how many employees can earn top ratings (a “forced distribution”), to shorten the performance improvement plan period to as little as 30 business days and to take away the option to contest a performance rating. That comment period closed March 26, 2026, and the rule is not yet final.
Separately, OPM and the MSPB have jointly proposed eliminating the framework historically used to assess whether a penalty is reasonable in adverse-action cases, replacing it with a “totality of the circumstances” standard. That proposal was published July 2, 2026, and is open for public comment. If finalized, it would be a significant change to how proportionality is reviewed in removal cases.
In addition, an executive order signed on June 3, 2026, moved roughly 8,000 senior career positions into a new “Schedule Policy/Career” employment category. Employees in this category lose Chapter 43 performance and Chapter 75 appeal protections and become essentially at will, with no MSPB appeal.
If your position has been placed into Schedule Policy/Career, the protections in this section may not apply to you—check with an attorney. If you received a strong performance rating and were then terminated for “inadequate performance,” document that contradiction carefully and preserve your records. Proper and thorough documentation is one of the most legally significant pieces of evidence in these types of cases.
What protections exist for federal employees who believe they are facing retaliation after reporting misconduct, filing complaints or exercising workplace rights?
Federal employees have a layered set of retaliation protections. Understanding which law covers your situation—and where to file—is critical, because the deadlines and procedures differ:
- Whistleblower Protection Act / Whistleblower Protection Enhancement Act: Protects disclosures of waste, fraud, abuse, violations of law, and substantial dangers to public health or safety. This process begins with a complaint to the Office of Special Counsel. If the office does not act within its time frame or find retaliation, the employee may file an Individual Right of Action appeal directly to the MSPB.
- Title VII / ADEA / ADA / GINA: These antidiscrimination statutes also prohibit retaliation for opposing discriminatory practices or for participating in the equal employment opportunity complaint process. Federal employees must contact an equal employment opportunity counselor within 45 days of the retaliatory act.
- 5 U.S.C. § 2302 — Prohibited Personnel Practices: Retaliation for exercising appeal rights, filing a complaint or cooperating in an investigation is a prohibited personnel practice. Reports can be filed with the Office of Special Counsel.
When retaliation is connected to a covered adverse action (removal, suspension, etc.), the case may become a “mixed case,” and the employee must choose whether to file first with the Equal Employment Opportunity Commission or the MSPB. The initial forum choice has procedural consequences that can be difficult to undo. Because each of these statutes carries its own filing deadline and procedural requirements, choosing the right forum early is important. Consult an attorney before filing.
How should employees document and strengthen a claim involving workplace discrimination, harassment or retaliatory treatment?
Documentation is the foundation of any federal employment claim. The steps that matter most:
Keep a contemporaneous log—not on government devices
Record dates, times, locations, witnesses and exact words used. Entries made close in time to events carry the most credibility.
Preserve evidence before any separation—before losing access to government systems
Take personal copies (where authorized by agency policy) of performance evaluations, award citations, commendations and communications relevant to your claim. Once you are separated, access to agency systems is cut off.
Identify witnesses
Note colleagues who observed relevant conduct. Even informal recorded witness accounts can be critical at a hearing.
Request your Official Personnel Folder
Under the Privacy Act, you are entitled to request a copy from your agency. It often contains documents that support— or reveal inconsistencies in—your case.
File on time
For equal employment opportunity complaints, the 45-day counselor contact clock starts from the discriminatory or retaliatory act. For MSPB appeals, the clock starts 30 days from the effective date of the adverse action.
Be strategic about forum selection
In mixed cases, which forum you file with first determines procedural rules for the entire case. An attorney with federal employment experience can evaluate which forum—the Equal Employment Opportunity Commission, the MSPB or a federal district court—is most advantageous, given your specific circumstances.
This blog post is part of our FedSupport series, bringing you tailored information from experts on an array of topics affecting federal employees—from policy analysis to career and benefits support.
Please note: This content offers general informational and educational purposes only and does not constitute legal advice. This transcript was lightly edited for clarity.
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