Using 5 U.S.C. Chapter 43 Procedures
Procedures under 5 U.S.C. Chapter 43 are taken when an employee fails in any of his/her critical elements (objectives/responsibilities) during or at the end of the performance cycle. When an an employee fails an element the supervisor must provide the employee an opportunity to improve his/her performance. If the employee's performance does not improve to at least a Fair (level 4) performance level at the conclusion of the opportunity period and there is no evidence a medical condition or substance abuse problem is impacting the employee's performance, the supervisor must determine whether to initiate an action to change the employee to a lower grade or remove him/her from Federal service.
- Change to lower grade (CLG) ( http://cpol.army.mil/library/permiss/522432.html) is the assignment of an employee from a higher-graded position into a lower-graded position, with lower-graded duties and responsibilities. This is an involuntary action that typically reduces the employee's pay and is an adverse action.
- Removal from Federal service ( http://cpol.army.mil/library/permiss/522433.html) is the separation of an employee from his position and Federal service. This action is usually taken when there is not an authorized vacant position to move the employee to via the CLG. A removal is an adverse action.
In order to be successful in a CLG or removal action under Chapter 43, a supervisor must show by substantial evidence that 1) the employee failed to meet the established performance standards in any critical element of his/her position, 2) established performance standards and critical elements were communicated to the employee, 3) the employee was made aware of his/her performance deficiencies and given an opportunity to improve to at least a level 4 rating via a performance improvement plan (PIP), and 4) at the conclusion of the PIP the employee's performance did not improve to an acceptable performance level.
NOTE: The supervisor may also consider reassigning the employee to another position of the same grade and pay if there is a vacant position for which the employee is qualified.
Using 5 U.S.C. Chapter 75 Procedures
Although Chapter 43 procedures are normally used for addressing unacceptable performance supervisors may use Chapter 75 procedures. These procedures are generally used when the employee's failure to follow work rule(s) is the basis for the unacceptable performance.
To be successful in a CLG or removal action under Chapter 75 procedures, a supervisor must show by a preponderance of evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than untrue. Supervisors are not required to provide the employee a performance improvement period or PIP before taking an action under Chapter 75, especially if the poor performance could result in a danger to health and safety of others.
Supervisors should contact their servicing CPAC for additional guidance for addressing poor performance.