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| 5 USC § 4303 |
When an individual is removed from federal employment based on unacceptable
performance under the Title 5 U.S.C. Part 43 (check your SF-50 to see if Chapter 43 is
cited), the Douglas Factors do not apply. Rather, Agency in such cases must substantiate
that: (1) the individual's performance failed to meet the established performance standards
in one or more critical elements of his position; (2) the agency established performance
standards and critical elements and communicated those to the individual at the beginning
of the performance appraisal period; (3) the agency warned the individual of the
inadequacies of his performance during the appraisal period and gave him an adequate
opportunity to improve; and (4) after an adequate improvement period, the individual's
performance remained unacceptable in at least one critical element. From MSPB AJ
Patricia M. Miller's Order dated January 25, 2012.
5 USC § 4303 - ACTIONS BASED ON UNACCEPTABLE PERFORMANCE
(from http://www.law.cornell.edu/uscode/text/5/4303)
(a) Subject to the provisions of this section, an agency may reduce in grade or remove an
employee for unacceptable performance.
(b)
employee is not reduced in grade or removed, and the employee’s performance continues
to be acceptable for 1 year from the date of the advance written notice provided under
subsection (b)(1)(A) of this section, any entry or other notation of the unacceptable
performance for which the action was proposed under this section shall be removed from
any agency record relating to the employee.
(e) Any employee who is—
Regarding MSPB hearing.
performance under the Title 5 U.S.C. Part 43 (check your SF-50 to see if Chapter 43 is
cited), the Douglas Factors do not apply. Rather, Agency in such cases must substantiate
that: (1) the individual's performance failed to meet the established performance standards
in one or more critical elements of his position; (2) the agency established performance
standards and critical elements and communicated those to the individual at the beginning
of the performance appraisal period; (3) the agency warned the individual of the
inadequacies of his performance during the appraisal period and gave him an adequate
opportunity to improve; and (4) after an adequate improvement period, the individual's
performance remained unacceptable in at least one critical element. From MSPB AJ
Patricia M. Miller's Order dated January 25, 2012.
5 USC § 4303 - ACTIONS BASED ON UNACCEPTABLE PERFORMANCE
(from http://www.law.cornell.edu/uscode/text/5/4303)
(a) Subject to the provisions of this section, an agency may reduce in grade or remove an
employee for unacceptable performance.
(b)
- (1) An employee whose reduction in grade or removal is proposed under this
section is entitled to—
- (A) 30 days’ advance written notice of the proposed action which identifies—
- (i) specific instances of unacceptable performance by the employee
on which the proposed action is based; and
(ii) the critical elements of the employee’s position involved in each
instance of unacceptable performance;
- (B) be represented by an attorney or other representative;
(C) a reasonable time to answer orally and in writing; and
(D) a written decision which—
- (i) in the case of a reduction in grade or removal under this section,
specifies the instances of unacceptable performance by the
employee on which the reduction in grade or removal is based, and
(ii) unless proposed by the head of the agency, has been concurred in
by an employee who is in a higher position than the employee who
proposed the action.
- (2) An agency may, under regulations prescribed by the head of such agency, extend
the notice period under subsection (b)(1)(A) of this section for not more than 30
days. An agency may extend the notice period for more than 30 days only in
accordance with regulations issued by the Office of Personnel Management.
- (1) shall be made within 30 days after the date of expiration of the notice period, and
(2) in the case of a reduction in grade or removal, may be based only on those
instances of unacceptable performance by the employee—
- (A) which occurred during the 1-year period ending on the date of the notice
under subsection (b)(1)(A) of this section in connection with the decision; and
(B) for which the notice and other requirements of this section are complied
with.
employee is not reduced in grade or removed, and the employee’s performance continues
to be acceptable for 1 year from the date of the advance written notice provided under
subsection (b)(1)(A) of this section, any entry or other notation of the unacceptable
performance for which the action was proposed under this section shall be removed from
any agency record relating to the employee.
(e) Any employee who is—
- (1) a preference eligible;
(2) in the competitive service; or
(3) in the excepted service and covered by subchapter II of chapter 75,
and who has been reduced in grade or removed under this section is entitled to
appeal the action to the Merit Systems Protection Board (MSPB) under section 7701.
Regarding MSPB hearing.
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