There are two methods an agency can use to discipline a federal employee for poor performance. The agency can allege that the employee engaged in poor performance. The agency can also allege that the employee engaged in misconduct.
Chapter 43 of Title 5 of the United States Code sets forth the steps an agency must take to remove someone for poor performance. In a nutshell, the agency must give the employee notice that his or her performance is unsatisfactory in one or more critical elements of that person’s job. After giving the employee notice, the agency must then give the employee an opportunity to improve his or her performance. If performance remains at the unsatisfactory level, then the agency must either propose the employee’s demotion or removal. If the deciding official concludes that the employee’s performance was unsatisfactory, then the deciding official must reassign, demote, or remove the employee. Adverse actions for poor performance under Chapter 43 are difficult to overturn, because an agency need only prove poor performance by showing that substantial evidence supports that conclusion. In addition, Chapter 43 does not allow for mitigation of the deciding official’s penalty.
The other method the agency can use to address poor performance is through Chapter 75 of Title 5 of the United States Code. Chapter 75 is typically used when an employee engages in some form of misconduct (e.g., insubordination or misuse of government property). When an agency alleges that an employee’s poor performance constitutes misconduct, then the agency must give the employee notice of the alleged misconduct through a proposed demotion or removal. However, the agency does not need to give the employee an opportunity to improve as required under Chapter 43. Further, in contrast to Chapter 43 procedures, the deciding official is not relegated to demoting or removing the employee.
Instead, the deciding official can give the employee a lesser penalty such as a suspension or letter of reprimand. The most important distinctions between Chapter 43 and Chapter 75 actions for poor performance are that the agency must prove by a preponderance of the evidence that the employee actually engaged in the misconduct alleged (i.e., that the employee’s performance was unsatisfactory) and that the penalty imposed was reasonable.
Although Chapter 43 procedures provide employees with an opportunity to improve, when the decision is made to remove or demote the employee, that decision will more likely than not be upheld on the merits. In that case, the employee is best served by alleging that the performance standards were unreasonable, the agency misapplied his or her performance standards, or failed to give the employee an adequate opportunity to improve. Although Chapter 75 procedures do not provide employees with an opportunity to improve, the agency must meet a higher standard to prove poor performance. Furthermore, under Chapter 75, the agency is not relegated to demoting or removing the employee. Under these circumstances, it is very important for an employee facing a proposed adverse action to determine which procedure the agency is using, and it is equally important for agency officials to carefully examine how they wish to address an employee’s poor performance.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
