A Successful Performance-Based Removal Under Chapter 75
By Deborah J. Hopkins, August 12, 2024
Quick facts:
- Most executive branch agencies have the flexibility to remove employees who have performance failures under either Chapter 43 or Chapter 75 of the Civil Service Reform Act (CSRA).
- If an agency has a policy that requires something beyond what the law requires, the agency must follow its own policy, or its action will be set aside.
- If an agency meets the requirements of a traditional Performance Improvement Plan (PIP) without identifying the process as such, it can still show that the legal requirements for a performance-based action have been met.
We’ve long taught in our classes that performance-based removals under Chapter 43 were intended to be fast and easy under the CSRA. After all, the burden of proof is only substantial evidence, a “reasonable” opportunity to demonstrate acceptable performance should not exceed 30 days, and supervisors have broad discretion in assessing employees on subjective performance standards.
Over the years, though, some agencies have made it more difficult through self-imposed hurdles, such as:
- Requiring a pre-PIP before implementing a PIP.
- Negotiating a long PIP (90 or 120 days) into a union contract.
- HR advisers telling supervisors (incorrectly) that they need much more evidence to implement a PIP than is actually legally required.
One of the approaches we at FELTG occasionally suggest is to handle a performance issue under the misconduct procedures in Chapter 75. This is a perfectly legal approach, and, in certain circumstances, it makes more sense than using the Chapter 43 procedures. See Lovshin v. Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc).
A recent MSPB case involved an agency that removed an employee in exactly this manner. Gist v. DOD, DC-0752-18-0614-I-1 (Jun. 12, 2024)(NP). Here are some relevant facts:
- The appellant, a GS-15 senior accountant, received his annual performance appraisal with a summary rating of “Not Met” because his performance was unacceptable on two critical elements: “Teamwork” and “Support of Mission.”
- The agency proposed his removal under 5 U.S.C. Chapter 75 based on a charge of “Duty Performance at the ‘Not Met’ Level,” with a specification that said “the appellant ‘failed to create an overarching financial reconciliation [Standard Operating Procedure (SOP)] and to monitor reconciliation activity on a regular basis’ as he had been directed to do … and he ‘failed to effectively work well with others to get the job done.’” at 2.
- He appealed his removal, claiming, among other things, that the assignment of the SOP was improper because he lacked the necessary background to complete it, that the assignment was vague and improper, and that he was given inconsistent instructions on how to actually complete the SOP.
- The AJ and the Board disagreed with the appellant and found the agency’s assignment was proper, that the appellant was unnecessarily causing tensions within the team, and that the agency proved its charge.
The appellant also argued that because the agency claimed he had performance issues, he should have been given a PIP, and that “if the agency had followed the prescribed [PIP] procedures, he would have improved his performance, and the entire removal action would have been avoided.” Id. at 7.
Which brings up another interesting point. An agency is not required to give a PIP in order to remove an employee for unacceptable performance under Chapter 75 – unless it has a policy that says it must.
So, in effect the Board agreed with the appellant about the entitlement to a PIP period, relying on the following:
DOD Instruction No. 1400.25, § 3.9.b explicitly acknowledges that a performance-based action can be taken under either authority (Chapter 43 or 75), and it provides without differentiation that, if an employee’s performance declines to an unacceptable level, the supervisor must inform him of the deficiency and provide him assistance to help him improve his performance during an opportunity period to demonstrate acceptable performance. Although this is not normally required in a Chapter 75 performance-based action … the agency here has imposed this additional requirement on itself and is, therefore, bound to follow it… We find that the agency followed its requirements as stated in DOD Instruction No. 1400.25, § 3.9.b for taking a Chapter 75 performance-based action. (bold added, internal citations omitted)Id. at 8.
However, the Board also found that while the agency did not put the employee on an official PIP, it met its own policy requirement, because:
- The supervisor informed the appellant of his performance deficiencies during his midyear performance evaluation, a full 4 months before the agency proposed the appellant’s removal;
- The agency provided the appellant with ample time to bring his performance up to standards; and
- The appellant’s supervisor met with him every other week about the SOP assignment, which satisfied the obligation to assist the appellant in improving his performance.
Because the agency afforded the appellant all the procedural protections that the DOD rule required for performance-based actions under chapter 75, the Board upheld the removal.
I discussed this case with FELTG founder Bill Wiley. I asked if he had any additional thoughts, and he shared the following:
Although the agency was successful in defending its removal of an unacceptably performing employee by using 752 procedures instead of 432 procedures, it gave itself two significant extra burdens. First, it had to defend the penalty selection of removal under Douglas. That means that it had to produce proof of the agency’s proper consideration of the Douglas Factors as well as proof of the facts alleged in the Douglas Factor analysis. Second, it had to do all this proving at the preponderant level (51%+ of the evidence) rather than at the substantial level (40%+) that is used for 432 removals. Yes, certain types of unacceptable performance situations are better addressed through use of the 752 procedures, e.g., a single act of highly harmful unacceptable performance. However, as a general rule, here at FELTG, we still recommend 432 procedures as a first and primary consideration when faced with a non-performer.