U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

SUBJECT:	NOTIFICATION OF UNACCEPTABLE PERFORMANCE/OPPORTUNITY TO IMPROVE
FROM:	MARIA SANCHEZ CHIEF, EMPLOYEE RELATIONS DIVISION
FROM:	JOHN BROOME EMPLOYEE RELATIONS SPECIALIST

Since your mid-year progress review on January 6th, your performance has declined steadily and has reached the Unacceptable level. You have not improved in any of the areas we discussed during the mid-year review, nor has your performance improved in response to counseling sessions and memoranda that you have received over the past few months. I have determined that you are Unacceptable in the critical element, "Providing Technical Assistance to Managers." Consequently, I am providing you with an opportunity to improve your performance to the Fully Successful level, and this notice outlines the required activities and the level of performance that you must attain in order to be considered Fully Successful on this critical element. If you have any questions concerning the contents of this notice, the performance standards involved, or my expectations of you during the opportunity period, please come to me immediately.

[This sample uses a performance system with a level 3 (Fully Successful) requirement. Be sure to review your agency's system to determine the level of performance that an employee must reach to stay in the job.]

The opportunity period begins today and will continue for 90 calendar days from today. As you are aware, the agency adopted a three-level performance appraisal system last year. Your performance elements and standards were given to you on _______. A copy of those are attached. Therefore, it is essential that you improve to the Fully Successful level by the conclusion of the opportunity period, or I will take action to remove or reduce you in grade. Although your annual rating is due in 3 weeks, our agency program allows me to delay the issuance of your summary rating until the conclusion of this opportunity period. While you are currently performing at an Unacceptable level, I am prepared to place greater weight on your performance during the opportunity period, and, if you improve to the Fully Successful level on this critical element, the improved performance will be reflected in the annual rating.

[Check your agency policies on the issue of delaying a final rating when an opportunity period is in effect.]

We will need to work together closely during the opportunity period, and I want to encourage you to discuss your cases with me at any time that you need some clarification or just want a sounding board for your ideas. At a minimum, we will meet once a week to go over your caseload and work through any problem issues. This will also be an opportunity for you to ask questions or seek clarification from me. For my part, I will give you an assessment of your performance progress for the week, provide recommendations for improvement, or give specific assignments and deadlines. We will plan to meet on Thursday afternoons from 2:00 - 3:00 p.m., throughout the opportunity period.

The Fully Successful level of performance in the critical element, "Providing Technical Assistance to Managers" states, "Provides accurate and timely advice and technical guidance to supervisors on a full range of issues involving discipline, leave, standards of conduct, and procedures for performance-based and adverse actions." The deficiencies in your performance are basically the same problems we have been discussing for some months. You are an experienced employee relations specialist and have done your job well in the past, but your current work products are plagued by incomplete, haphazard preparation and background work. Additionally, your work is not timely and I am routinely receiving complaints from supervisors that you are not returning their calls in a timely manner and draft documents are not delivered as promised.

Specifically, you and I have discussed several times that it is not appropriate for you to rely on your recollection of case law from the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC). Instead, you must research the current case law whenever you are preparing to give a supervisor advice on how to proceed and certainly before drafting a proposed notice of action based on misconduct or performance problems. While numerous examples of this problem are noted in my counseling notes to you, one example is illustrative. You advised a manager that she could send home an employee who was not "ready, willing, and able" to work and the employee would be forced to use his own leave. The case law on this topic is clear that the MSPB has not allowed the use of enforced leave without adverse action procedures, and it has been years since the "ready, willing, and able" standard was dropped by the Board. Your failure to stop and check the status of the cases in this area caused the supervisor to erroneously place an employee on leave, an action that had to be corrected as soon as I heard about it from a union steward. The supervisor was embarrassed when she had to contact the employee about the correction and was furious for being made to look ignorant. Even after I brought this to your attention, you were adamant that the old case law prevailed and only agreed with me after I ordered you to review the case law from the last 4 years. As noted earlier, additional examples of this type of problem are in the counseling memorandum (dated _________ ), which I have provided to you.

The other key performance deficiency that we have been discussing is your lack of attention to specific deadlines and a general lack of attentiveness to the supervisors who seek your technical expertise and guidance. In all cases where a supervisor has complained to me about your failure to follow up, I have notified you and asked for an explanation before responding to the manager who raised the issue. Dr. Tiberius, a manager in the finance department, was particularly frustrated when you did not return several of his calls (over a 4-day period) and finally called me to get an answer to a relatively simple question about the procedures for invoking leave under FMLA. Similarly, I had to respond to calls from Ms. Capulet, another of your customers, who was in her second week of waiting for a proposed suspension notice. When I asked you about the action, you told me it was a routine AWOL action but you just hadn't gotten to it. Looking at everything else you had responsibility for during that 2-week period, I found no justification for the delay and assigned the notice to another specialist who prepared it in 2 days.

[Actual notices will include more details concerning unacceptable performance. Often data cited to support the determination of unacceptable performance are attached to the notice.]

I recognize that you have many competing demands on your time, but it is essential that you keep supervisors apprised of what you are doing and set realistic timeframes for responding to their inquiries or for drafting memos or notices. A GS-13 is required and expected to make independent judgments and appropriately schedule their work for timely completion. In all of our discussions, you have not articulated a good reason for your failure to return a phone call or deliver a promised draft. Your statement that you are doing your best does not seem viable when large numbers of deadlines are missed and telephone calls are not returned. The impact of your poor performance is severe because it causes me or other staff members to do additional work, and it lessens the respect that supervisors have for you and makes them unwilling to work with you on employee relations matters.

Under the critical element, "Provides Technical Assistance to Managers," the Fully Successful level states, "Provides accurate and timely advice and technical guidance to supervisors on a full range of issues involving discipline, leave, standards of conduct, and procedures for performance-based and adverse actions."

During the opportunity period, you must perform in at least a Fully Successful manner in this critical element. Specifically, you must research the current case law before issuing any draft notice and should use your best judgment to determine the need for research in response to inquiries from managers. This should not cause a great increase in time per case because you have access to a computerized research tool that provides access to MSPB, EEOC, and court decisions and has a very effective search mechanism. For the duration of the opportunity period, you will need to keep a short but concise telephone log of calls and issues to which you respond. During our weekly meeting, we will discuss your responses so that I can review the advice you are providing to supervisors and managers. Additionally, print out a copy of relevant decisions (or case summaries, if that will suffice) that will support your position on the actions for which you are drafting notices. We will review this research each week during our meeting. Over the course of the opportunity period, I expect to find routinely that your advice and notices are accurate, based upon solid and up-to-date research.

I believe that your problems with timeliness can be addressed by a more organized approach to your work. First, you must set reasonable deadlines for accomplishing research and drafting notices. If you know you have several cases where action is pending, do not overcommit yourself to supervisors; come to see me and we will decide whether the work needs to be passed on to another staff member. Realistically, notices such as leave restriction memos, reprimands, and proposal notices for the more routine misconduct should be returned to supervisors in draft in 3 working days. More complicated notices should be returned in draft within 5 working days. I recognize that there are always exceptional cases, and I want to work closely with you on establishing deadlines for each of your assignments during the opportunity period. To be determined Fully Successful, you will need to meet established deadlines in 90% of your work. Unless I set a specific date for an assignment, "established deadlines" will be the 3 or 5 working days noted above. During our first weekly meeting, bring a list of everything currently pending on your desk and we will prioritize the work and set deadlines.

Secondly, keeping a telephone log will serve two purposes. The first, as noted above, will give me an understanding of what advice you are giving and will enable me to make recommendations for additional research where necessary. It will also be a way for you to keep records of when you received a call from a manager and when you responded to it. We will review this log at each of our weekly meetings, and I will use it as a method of keeping track of your workload as well as to monitor your progress in becoming more responsive to management inquiries. For the Fully Successful standard, I expect to receive no more than three justified calls during the opportunity period from supervisors complaining that you have not yet returned a call. In order to handle what may be a backlog of unanswered calls, however, I will not count any calls received during the first 2 weeks of this opportunity period.

If you follow the activities outlined above, your performance in the area of providing technical assistance should improve in both accuracy and timeliness. Additionally, I strongly encourage you to discuss cases with me on an informal basis throughout the opportunity period as well as in our scheduled weekly meetings. These meetings will focus on progress made and problems encountered as well as suggestions for improvement in your performance.

[Although this sample involves a non-bargaining unit employee, always be sure to contact your human resources office to determine what agency policies might require you to provide in the way of additional information or referrals for the employee.]

If you believe that a personal, medical, or other problem is causing these performance deficiencies, I encourage you to seek assistance through the agency's Employee Assistance Program (EAP). You can obtain assistance by contacting our EAP contract office at 1-800-555-1212. Participation in this program is voluntary and, with certain restrictions, confidential.

At the completion of the opportunity period, I will make an assessment of your performance. I believe at that time that you will have attained the Fully Successful level in this critical element. You must meet and maintain the Fully Successful level on this critical element for 1 year from the beginning of the opportunity period (the date of this memorandum). Failure to achieve Fully Successful performance on this critical element during the opportunity period or to maintain it during the remainder of the 1-year period may result in removal or reduction in grade without any further opportunity to demonstrate acceptable performance.

If you have any concerns about this memorandum or require additional guidance on implementing the provisions of it, please let me know as soon as possible. Keep in mind that it is important to refer to the requirements laid out in this notice throughout the opportunity period. Please sign a copy of this memorandum, which serves only to acknowledge your receipt of this notice.

Receipt Acknowledged

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Signature	Date