Current as of: February 2010 (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.
(c) The decision to retain, reduce in grade, or remove an
employee -
(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.
(d) If, because of performance improvement by the employee during
the notice period, the 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
under section 7701.
(f) This section does not apply to -
(1) the reduction to the grade previously held of a supervisor
or manager who has not completed the probationary period under
section 3321(a)(2) of this title,
(2) the reduction in grade or removal of an employee in the
competitive service who is serving a probationary or trial period
under an initial appointment or who has not completed 1 year of
current continuous employment under other than a temporary
appointment limited to 1 year or less, or
(3) the reduction in grade or removal of an employee in the
excepted service who has not completed 1 year of current
continuous employment in the same or similar positions.Legislative History Prev ________________________________________________________________________
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