1. Pursuant to 5 U.S.C. 4303, an action based on unacceptable performance, for the purpose of this article, is the reduction in grade or removal of an Employee whose performance is at the unacceptable ("Results Not Achieved") level. Unacceptable performance means the performance of an Employee that fails to meet established performance standards in one (1) or more critical result(s) of his/her position.
2. Prior to issuing a notice of proposed action based upon unacceptable ("Results Not Achieved") performance, the Employer will provide the Employee an opportunity to demonstrate acceptable ("Results Achieved") (5 CFR 432.104/370, DM 430.3.6) performance. The Employer will provide a written notice to the Employee, in the form of a performance improvement plan (PIP). The PIP will:
a) Cite the critical result(s) for which performance is unacceptable.
b) Give specific instances of unacceptable performance related to the critical result(s).
c) Cite the performance standards and describe the performance requirements that must be met in order to demonstrate performance at the acceptable ("Results Achieved") level for each critical result in which the Employee's performance is unacceptable.
d) Describe the appropriate assistance that will be provided by the Employer to help the Employee improve his/her performance to the acceptable level.
e) State that the Employee will be given at least a 90-day opportunity to demonstrate acceptable ("Results Achieved") performance in his or her position. The time period will be based upon the type of duties required by the position.
f) Inform the Employee that unless his or her performance in the critical result(s) improves to and is sustained at an acceptable level, the Employee may be reduced in grade or removed. (5 CFR 431.104/370, DM 430.3.6)
g) Provide for notification to the Employee during the PIP when PIP requirements are not being met.
NOTE: Neither the Union nor the Employee may grieve the notice described above. This does not preclude the Union or the Employee from filing an appropriate grievance on the performance appraisal.
3. At the end of the opportunity period specified in the PIP, the supervisor will reevaluate the Employee's performance.
a) If it is determined that the Employee's performance improved to the acceptable level ("Results Achieved"), the supervisor will notify the Employee in writing that:
(1) his/her performance has improved to the acceptable level;
(2) his/her performance must be sustained at the acceptable level in the critical element(s) for which he/she was given an opportunity to improve; and
(3) he/she may be subject to a removal or reduction in grade under 5 CFR 432 if performance again becomes unacceptable in the same critical result within one (1) year without the benefit of an additional improvement period.
b) If it is determined that the Employee's performance during or following the PIP remains at the unacceptable ("Results Not Achieved") level in the critical result(s) and the Employee was afforded an opportunity to demonstrate acceptable performance (5 CFR 432.105(a)), the supervisor will give the Employee a written thirty (30)day advance notice of any proposed action, reduction in grade or removal.
(1) The advance notice of proposed action will cite: (5 CFR 432.105(4)(i))
(a) The critical result(s) of the Employee's position involved in each instance of unacceptable performance.
(b) The specific instance(s) of unacceptable performance by the Employee on which the proposed action is based; and
(c) The Employee's right to representation by an attorney or other representative.
(d) The Employee's right to answer the notice orally and in writing within fifteen (15) calendar days of his or her receipt of the notice. Requests from an Employee or the Employee's representative for extensions of the time limits for replying to notices of proposed action will be considered on a case-by-case basis.
(e) The name and title of the designated deciding official to whom the response is to be made.
(2) If an Employee makes an oral reply, the Employer will prepare a summary of the oral reply, and will provide a copy to the Employee and/or the Union representative upon request. At the Employee's request, a Union representative may be present during the oral reply.
(3) The advance notice period may be extended for a period not to exceed thirty (30) additional calendar days by the Chief, MAC, or his/her designee.
c) If an Employee's performance within one (1) year following an opportunity to improve becomes unacceptable in the same critical result(s) for which the Employee was given the opportunity to improve, the Employer may propose reduction in grade or removal without giving the Employee an additional opportunity to demonstrate acceptable performance.
d) If an Employee performs at the acceptable level for one (1) year or more from the beginning of the notice of opportunity to improve, and the Employee's performance again becomes unacceptable in any critical result, the Employer shall afford the Employee an additional opportunity to demonstrate acceptable performance before deciding whether to propose reduction in grade or removal.
e) If the Employee's performance improves during the performance improvement period and he/she is not reduced in grade or removed, any entry or other notation of the unacceptable performance will be removed from any record relating to the Employee after one (1) year of acceptable ("Results Achieved") performance (5 U.S.C. 4303(d)).
4. The decision to reduce in grade, remove, or retain an Employee must be made within thirty (30) calendar days after the expiration of the notice period. Decisions to reduce in grade, remove, or retain must be based on matters specified in the notice of proposed action. The deciding official must:
a) be at a higher level in the organization than the proposing official;
b) render a written decision which:
(1) considers any answer of the Employee and/or his or her representative in response to the agency's proposal;
(2) is based only on those instances of unacceptable performance that occurred during the one (1) year period ending on the date of issuance of the advanced notice of proposed action;
(3) states the effective date of the action and is issued to the Employee at least seven (7) calendar days before the time the action will be effective;
(4) specifies the instances of unacceptable performance by the Employee on which the action is based; and
(5) informs the Employee of his or her appeal and/or grievance rights. (The filing of a grievance will not preclude or delay the action.)
5. If the Employer's final decision is to effect an action based on unacceptable performance against a bargaining unit Employee, the Employee may appeal the decision to the Merit Systems Protection Board (MSPB) or file an EEO complaint in accordance with applicable law, or file a grievance under the negotiated procedures and is entitled to Union representation. Under no conditions may an Employee file a grievance and appeal an action based on unacceptable performance to MSPB or file an EEO complaint.
6. If the Employee wishes the Employer to consider any medical condition which may contribute to a performance problem, the Employee may furnish medical documentation of the condition during the time period for reply (5 CFR 432.105(a)(4)(i)(c)(iv)). At the time a decision is rendered, the Employer will provide the Employee with information about disability retirement, if the Employee has the requisite years of service (5 CFR 752.404(c)(3)). An Employee's application for disability retirement shall not preclude or delay any other appropriate personnel action except for removal. When the proposed action is removal, the Employer agrees to extend the proposal notice period up to the amount of time equal to the Employee's sick leave balance if the Employee provides evidence of application for disability retirement within the initial thirty (30) day notice period. The extended period may include any period of leave for which the Employee receives through approved leave share donations.
The Employer will be placed on sick leave/donated leave during the extension. In no case will the extended notice period go beyond the OPM decision on the application for disability retirement. If approved, the Employee must effect his/her retirement within two (2) weeks or the period ends. If disapproved, the extended proposal period will end two (2) weeks after the date of the disapproval.