Chapter 43: § 4303. Actions based on unacceptable performance.

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 5USC4303]


             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

                           PART III--EMPLOYEES

                     Subpart C--Employee Performance

                    CHAPTER 43--PERFORMANCE APPRAISAL

                    SUBCHAPTER I--GENERAL PROVISIONS

Sec. 4303. Actions based on unacceptable performance

    (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.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95-454, title II,
Sec. 203(a), Oct. 13, 1978, 92 Stat. 1133; Pub. L. 101-376, Sec. 2(b),
Aug. 17, 1990, 104 Stat. 462.)

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