Resource Center for Addressing and Resolving Poor Performance
Step Three: Taking Action
How much specific information needs to go into a proposal notice to remove?
We have provided a sample of an action proposed under Part 432 in the appendix to this booklet, but the real answer to this question lies in your agency. Each agency has a "culture" that defines the amount of information and documentation that will go into a proposal notice. At a minimum, your notice will state which regulation the action is being taken under, specify what critical performance element(s) the employee failed to meet, cite the evidence of unacceptable performance, and discuss the opportunity period (or the lack of one). The notice will also explain to the employee the time allowed for a written and/or oral response. Ask your human resources specialist for some samples of other performance-based notices to get a sense of what your agency requires.
What reasons warrant not providing an employee with a formal opportunity period to improve?
As stated earlier, if you take a performance-based action under Part 432, you must provide an employee with a formal opportunity to improve. On the other hand, Part 752 does not require a supervisor to provide an employee with such an opportunity. One reason for not providing an opportunity period may be that your employee has several years of experience in the job and additional training would prove useless. Another reason may be that your employee has already received extensive informal training and additional training or assistance would seem unreasonable.
What if I fail to issue my Part 432 decision within 30 days after the notice period expires?
The regulations require that an employee receive a decision in Part 432 actions within 30 days of the expiration of the 30-day notice period. This provision automatically gives you a 60-day period of time in which to work. Additionally, the Office of Personnel Management has issued regulations that give agencies the discretion to extend the initial 30-day notice period by another 30 days, so you are actually working within a 90-day timeframe. However, there are always those situations where even more time will be needed, perhaps because the employee has asked for a lengthy extension to prepare a response or the deciding official cannot gather and analyze all the information needed within the 90 days allowed. 5 CFR Part 432 lists six reasons that commonly cause delay and allows agencies to extend the notice period if those conditions exist. If your situation does not fall into any of the six categories, the regulations provide that OPM can approve an extension of the notice period based on a brief written request by the agency.
How should I decide whether to suspend, demote, or remove?
This answer depends largely on whether you proceed under Part 432 or Part 752. Under Part 432, you have the option of demotion or removal and you do not have to defend your reasoning for choosing either action. As was noted in Figure C, mitigation to a lesser action by a third party is not possible. So, if you meet the requirements of proving that the employee was unacceptable, even after being given an opportunity to improve, no third party can challenge your reasons for removing instead of demoting the employee. Therefore, your decision is based on your analysis of whether the employee can function acceptably in a lower graded position or not. Some agencies may have policies that require supervisors to explore demotion options before going to removal, but that policy would be an internal policy, not one that governs all Federal supervisors.
However, reduction in the agency-selected penalty, known as mitigation, is a possibility in any action taken under Part 752. Therefore, you will need to explain in any decision notice, and possibly in a proposal notice as well, what factors led you to believe that your chosen action (suspension, demotion, or removal) was the right one. Most supervisors who have taken any kind of adverse action against an employee have been told about the Douglas factors. This is a reference to a decision by the Merit Systems Protection Board that listed 12 factors that might be taken into consideration when deciding on the appropriate penalty in any adverse action. Your human resources office will be able to provide you with a copy of these factors. At this point, it is sufficient to understand that the factors force a deciding official to examine any issues that might support a more severe penalty as well as those circumstances that would convince the deciding official to lower the penalty.