Description: U.S.Fish and Wildlife Service224 FW 2, Performance-Based Actions 


FWM#:      031 (new)
Date:         July 14, 1992
Series:       Personnel
Part 224:    Performance Utilization
Originating Office: Division of Personnel Management


2.1 Purpose. The purpose of this chapter is to set forth the processes and procedures for addressing deficient employee performance and taking appropriate remedial action (reduction in grade or removal) against an employee for such deficiencies when necessary.

2.2 Objective. The objectives of this chapter are to correct the performance deficiencies of employees and to promote a sound and effective performance management system.

2.3 Scope.

A. Employee Coverage. All employees of the Service are covered by the procedural requirements of this chapter except as follows:

(1) Employees in the competitive service serving a probationary or trial period under an initial appointment;

(2) Employees in the competitive service serving in a type of appointment that requires no probationary or trial period (e.g., Temporary Appointment Pending Establishment of a Register (TAPER)) who have not completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;

(3) Employees in the excepted service who have not completed 1 year of current continuous employment in the same or similar position;

(4) Employees in the Senior Executive Service;

(5) Employees appointed by the President;

(6) Employees occupying positions in Schedule C as authorized under 5 CFR Part 213;

(7) Reemployed annuitants; and

(8) Employees occupying positions in the excepted service for which employment is not reasonably expected to exceed 120 calendar days in a consecutive 12 month period.

B. Actions Covered. This chapter covers reduction in grade and removal actions based on (1) unacceptable performance for employees covered by the Performance Management System (PMS) and (2) less than fully successful performance by employees included in the Performance Management and Recognition System (PMRS). (Because the Service performance appraisal system provides for rating an employee's performance on an individual performance element at one of three levels; e.g., exceeds fully successful, meets fully successful, or less than fully successful, for purposes of procedures provided by this chapter, a PMS employee's performance is considered to be unacceptable whenever he/she is performing at a less than fully successful level in one or more critical elements.)

C. Actions Not Covered. The procedures set forth herein do not apply to the following actions:

(1) The reduction in grade of an employee from an initial supervisory or managerial position to a nonsupervisory or nonmanagerial position at the same grade held immediately prior to appointment as a supervisor or manager when such reduction is based on failure to satisfactorily complete the requisite probationary period;

(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;

(3) The reduction in grade or removal of an employee in the competitive service who is serving in an appointment that requires no probationary or trial period and who has not completed 1 year of current continuous employment in the same or similar position under other than a temporary appointment limited to 1 year or less;

(4) 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 position;

(5) A removal from the Senior Executive Service to a civil service position outside the Senior Executive Service;

(6) A reduction-in-force action;

(7) A voluntary action by an employee;

(8) A performance-based action taken under 5 CFR Part 752;

(9) An action that terminates a temporary or term promotion and returns the employee to the position from which promoted or to another position of equivalent grade and pay provided the employee was informed that the temporary/term promotion would be of limited duration;

(10) A termination in accordance with terms specified as conditions of employment at the time the appointment was made;

(11) An involuntary retirement due to disability; and

(12) Denial of a within-grade increase covered by 370 DM 531.

2.4 Authorities. This chapter is promulgated under the authority of 5 USC Chapter 43, 5 CFR Part 432, FPM Chapter 432, and 370 DM 432.

2.5 Responsibilities.

A. The Director is responsible for Servicewide administration and direction of the policies and procedures governing performance-based actions under this chapter.

B. The Assistant Director - Policy, Budget and Administration is responsible for the effective administration of the policies and procedures governing performance-based actions covered herein to ensure that Service goals and objectives are met by the program.

C. The Chief, Division of Personnel Management, is responsible for the development, implementation, and management of Service policy regarding performance-based actions published in this chapter.

D. Regional Directors are responsible for the proper administration and management of the subject policy within the Regions.

E. Regional Personnel Officers and the Chief, Branch of Headquarters Operations, and the Chief, Office of Administrative Support, Region 8, are responsible for appropriately carrying out the provisions set forth by this chapter in their respective Regions and Headquarters.

F. Supervisors are responsible for developing and communicating performance expectations to employees in an effective manner, identifying deficiencies in employee performance, providing assistance to subordinates in an effort to correct problems, and taking remedial action as appropriate.

G. Employees are responsible for meeting established performance requirements and standards and maintaining an acceptable level of competency for continued employment.

2.6 Definitions.

A. Acceptable Performance. Performance that meets an employee's performance requirements or standards at the level of performance above "unacceptable" for each established critical element where the employee is covered by the PMS. For employees covered by PMRS, acceptable performance is performance determined to be at the fully successful level or above for each established critical element. Because the Service performance appraisal system provides for rating an employee's performance on an individual performance element at one of three levels (e.g., exceeds fully successful, meets fully successful, and less than fully successful), acceptable performance for a PMS employee would be at the "meets fully successful" level or above.

B. Critical Element. A component of a position consisting of one or more duties and responsibilities that contributes toward accomplishing organizational goals and objectives and is of such importance that unacceptable performance on the element by a PMS employee and less than fully successful performance on the element by a PMRS employee constitutes unsatisfactory performance in the position.

C. Current Continuous Employment. A period of employment or service immediately preceding an action under this chapter in the same or similar position without a break of one workday in Federal civilian employment.

D. Days. Any reference to days in this chapter is to calendar days.

E. Less than Fully Successful Performance. Performance of a PMRS employee that fails to acceptably meet established performance standards in one or more critical elements of such employee's position.

F. Opportunity to Demonstrate Acceptable Performance. A reasonable period of time for an employee covered by the PMS whose performance has been determined to be unacceptable in one or more critical elements or an employee covered by PMRS whose performance in one or more critical elements is less than fully successful to demonstrate acceptable performance in the critical element(s) at issue. The term "opportunity to improve" is used interchangeably with "opportunity to demonstrate acceptable performance" throughout the chapter.

G. Performance Improvement Plan (PIP). An official written plan required for a PMRS employee whose performance in one or more critical elements has been determined to be less than fully successful, and which is also required for a PMS employee whose performance in one or more critical elements is unacceptable. A PIP is also sometimes referred to as an "opportunity to improve letter" for a PMS employee. (See 2.8 for the contents of a Performance Improvement Plan.)

H. Performance Management System Employee. An employee covered by the provisions of this chapter who is not included under the Performance Management and Recognition System.

I. Performance Management and Recognition System Employee. An employee who is a supervisor or management official as defined in 5 USC 7103(a)(10) and (11) and who occupies a position classified in GS-13, 14, or 15.

J. Reassignment. A change of an employee from one position to another without promotion or demotion.

K. Reduction in Grade. The involuntary assignment of an employee to a position at a lower classification or job grading level.

L. Removal. The involuntary separation of an employee from the Federal Service.

M. Similar Positions. Positions in which the duties performed are similar in nature and character and which require substantially the same or similar qualifications so that the incumbents could be interchanged without significant training or undue interruption to the work.

N. Unacceptable Performance. Performance of a PMS employee that fails to meet established performance standards in one or more critical elements of such employee's position.

2.7 Evaluating Employee Performance. Performance evaluation of employees should be an ongoing process for supervisors. Supervisors are strongly encouraged to conduct periodic informal performance reviews with subordinates and are required to conduct one formal performance review with employees at midyear in addition to the end-of-year formal performance evaluation (See 224 FW 1 - Performance Management System). Supervisors should undertake timely employee counseling as an effective means of addressing performance problems as they arise. Counseling employees about specific performance deficiencies as soon as they arise and offering appropriate assistance in overcoming the problems can often prevent the development of more serious performance problems. Written records of such counseling sessions shall be made by the supervisor with a copy provided to the employee, preferably by a memorandum to the employee with the employee's signature acknowledging receipt so that such discussions are officially on record should more serious action need to be initiated to address performance problems.

2.8 Procedures for Addressing Unacceptable Performance by PMS Employees/Less than Fully Successful Performance by PMRS Employees. At any time during the performance appraisal cycle that a PMS employee's performance becomes unacceptable in one or more critical elements or a PMRS employee's performance is determined to be less than fully successful in one or more critical elements, it is the responsibility of a supervisory official (usually the first level supervisor/official responsible for evaluating and rating the employee's performance) to officially put the employee on notice of such unsatisfactory performance by establishing a Performance Improvement Plan. The PIP shall be in writing and, at a minimum, consist of the following:

A. The critical element(s) for which performance is unacceptable for PMS employees/less than fully successful for PMRS employees to ensure that the employee understands the specific areas in which his/her performance is deficient. Supervisors must provide employees with specific examples of the performance deficiencies in each critical element for which performance is not acceptable to provide further clarity to the employee regarding the performance problems;

B. For the PMS employee: The performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance. This can be accomplished by informing the employee of the performance standards at the acceptable level and/or clarifying for the employee by specific assignments, instructions, or other means the acceptable level of performance under those standards.

For the PMRS employee: A description of the types of improvements that are necessary by the employee to attain fully successful performance in the critical element(s) at issue;

C. A reasonable period of time for the employee to achieve the required level of performance. Neither law nor regulation by the Office of Personnel Management (OPM) stipulates a required minimum or maximum number of days for which an employee is given an opportunity to demonstrate acceptable performance. Hence, the duration of an opportunity period to improve shall be determined on a case-by-case basis. Individual managers are in the best position to understand the work requirements of their units and the nature of the employee's duties and responsibilities and, therefore, to exercise judgment in determining the length of the employee's opportunity to improve. In some cases, it may be appropriate to establish an employee's opportunity to improve on a basis other than a specific period of time inasmuch as not all opportunities to improve can easily be geared to predetermined time limits. For example, the demonstration of acceptable performance in certain jobs might best be determined in terms of how the employee performs a series of assignments;

D. The type(s) of supervisory assistance to be provided to the employee in correcting his/her performance. Supervisors have a great deal of latitude in choosing the method or manner in which to attempt to assist the employee. The following are some of the more commonly used methods.

(1) Supervisory Assistance/Counseling. The supervisor may conduct informal discussions or meetings with the employee on an as-needed or regular basis to assist the employee in understanding work objectives, to make the employee aware of progress or lack thereof in meeting those objectives, and to offer suggestions on how to improve performance. (Meetings or discussions such as those described above shall be documented in writing by a memorandum to the employee with the employee's signature acknowledging receipt.) Additionally, the supervisor may provide written memoranda which critique the employee's work and which cite errors and deficiencies along with specific ways to correct them, and/or samples of acceptable work for the employee to follow as a model or guide.

(2) Training. The types of training that may be considered as a means of improving knowledge, skills, and abilities may include formal training, on-the-job training, mentoring, or other forms of assistance by coworkers or senior staff members. There is no requirement that formal training be provided. Careful documentation of the training provided and the results therefrom shall be made by the supervisor;

E. The requirement that the employee must improve to an acceptable level of performance by the conclusion of the PIP and must sustain that level of performance for at least 1 year from the start of the PIP. The employee shall also be advised that if his/her performance does not reach an acceptable level by the conclusion of the PIP or is not sustained for 1 year following the start of the PIP, the employee may be subject to reduction in grade or removal action without being given an additional opportunity to demonstrate acceptable performance in the critical element(s) at issue;

F. A general referral to the Employee Assistance Program should the employee believe that the performance deficiencies are caused by personal/emotional problems including drug or alcohol abuse. (See Service regulations on the Employee Assistance Program, 227 FW 4, for additional information.)

In addition to the above requirements, supervisors may include as part of the employee's PIP other information they consider appropriate. Also, an official rating of record (224 FW 1) is optional when a PMS employee's performance becomes unacceptable or a PMRS employee's performance is determined to be less than fully successful regardless at what stage of the performance appraisal cycle the employee's performance is determined unsatisfactory. Supervisors must seek the advice and assistance of the employee's servicing personnel office immediately upon recognizing that the employee's performance in one or more critical elements is not acceptable and must receive a technical compliance review of a PIP by the servicing personnel office prior to issuance to the employee. Upon issuance, the supervisor shall provide a copy of the PIP to the employee's servicing personnel office.

2.9 Extension of Opportunity to Improve. Supervisors may extend an opportunity to improve if, at the end of the initially established period, the employee's performance is still not acceptable or the supervisor is unable to make a determination that the employee's performance has improved to an acceptable level. Such extensions should be infrequent and provided only when the circumstances of a particular case clearly warrant additional time. For example, if the employee is sick during a significant portion of the designated time for demonstrating acceptable performance, the employee may be allowed additional time when he/she returns to duty so that a fair and representative determination of performance can be made.

2.10 Performance Improvement During the Opportunity to Improve. An employee who improves his/her performance to an acceptable level when given an opportunity to improve may not be reduced in grade or removed. However, the employee has a responsibility to maintain the acceptable level of performance in the critical element(s) at issue for a period of 1 year from the beginning date of the PIP, and failure to do so may result in a reduction in grade or removal action under these procedures without being afforded an additional opportunity to improve. When an employee improves his/her performance to an acceptable level during the opportunity to improve, the supervisor shall so inform the employee in writing. Such written communication must also remind the employee of his/her responsibility to maintain acceptable performance for a period of 1 year as described above.

2.11 Principal Requirements for Taking Reduction in Grade or Removal Actions. The following outlines the legal and regulatory prerequisites and requirements for taking a reduction in grade or removal action under this chapter.

A. OPM Plan Approval. The Department must have an OPM-approved performance appraisal plan in place. (See Appendix 1 for letters of approval of the Department's performance appraisal plan issued by OPM.)

B. Communication of Performance Elements and Standards. Supervisors must communicate to the employee performance elements and standards that, to the maximum extent feasible, permit the evaluation of job performance on the basis of objective criteria. (Refer to 224 FW 1 and see Appendix 2 of this chapter for information on 5 CFR Part 430 requirements as they relate to communicating, changing, and assessing the validity of performance elements and standards.)

C. Notification of Deficient Performance. See 2.8.

D. Reasonable Opportunity to Improve. See 2.8.

E. Advance Notice of Proposed Action. See 2.13, below.

F. Representation. See 2.13E.

G. Opportunity to Respond to the Proposal Notice. See 2.13G.

H. Issuance of a Written Agency Decision. See 2.18.

2.12 Taking Action Based on Unacceptable Performance (PMS)/Less Than Fully Successful Performance (PMRS). If an employee fails to raise his/her level of performance to the acceptable level during the opportunity to improve, a supervisory official (usually the first level supervisor/official responsible for evaluating and rating the employee's performance) shall initiate action to propose the employee's reduction in grade or removal. (Although not covered by the procedures of this chapter, a reassignment, voluntary reduction in grade, retirement, or resignation may also be considered in lieu of reduction in grade or removal. However, with the exception of a reassignment and, under certain circumstances, a disability retirement, the above actions must be of the employee's own choosing without coercion from the supervisor. Supervisors should seek guidance from the employee's servicing personnel office relative to these alternative personnel actions.)

2.13 Procedures for Proposing an Action Based on Unacceptable Performance (PMS Employees)/Less Than Fully Successful Performance (PMRS Employees). The following details the procedural requirements for proposing a reduction in grade or removal action. Supervisors must seek the technical guidance of the employee's servicing personnel office in proceeding with one of the above actions. Supervisors are accountable for providing a draft of the proposal notice to the employee's servicing personnel office for a technical compliance review. Supervisors must also provide a signed copy of the final proposal notice to the servicing personnel office when issued.

Advance Notice. An employee is entitled to a 30-day advance written notice of the proposed reduction in grade or removal action. In computing the length of the advance notice period, the day on which the notice is delivered is not counted since it is not a full calendar day. The last day of the notice period is counted; however, when the last day of the notice period falls on a Saturday, Sunday, or legal holiday, the action may be effected no earlier than the next business day. The advance notice of proposed action is issued by the first level supervisor or rating official and must contain the following information:

A. The action proposed;

B. The critical elements involved in each instance of unacceptable performance (PMS employees) or less than fully successful performance (PMRS employees);

C. The specific instances of unacceptable performance by the PMS employee or less than fully successful performance by the PMRS employee on which the proposed action is based. The instances or examples of unsatisfactory performance must be clearly stated and identified in sufficient detail to enable the employee to fully understand performance deficiencies and respond to them if he/she so chooses. The instances of unacceptable/less than fully successful performance must be clearly tied to the critical element(s) involved;

D. Mention of the opportunity to improve performance and any efforts of assistance provided to the employee;

E. The employee's right to be represented by an attorney or other representative. However, the notice shall state that the employee's representative may be disallowed if the individual's activities as a representative could cause a conflict of interest or position, would give rise to unreasonable costs to the Government, or would conflict with priority work assignments;

F. The employee's right to review the material on which the proposal is based and whom to contact regarding such review;

G. The employee's right to answer both orally and in writing and a reasonable amount of time allowed for the reply(ies) but not less than 7 days. The notice shall state that an extension of the time limit to respond will be considered if the employee provides a good reason for the request. Also, the notice shall indicate whom to contact to arrange for the use of official time in preparation of the employee's response(s) if the employee is in an active duty status, and must include the name and address, including telephone number, of the deciding official to submit any written response and/or make arrangements for an oral reply. If the deciding official is not available to hear the oral reply, an agency official empowered to recommend a decision to such supervisor should be designated to hear the oral reply and his/her name included as such in the proposal notice. See 2.18 for information regarding the deciding official;

H. The employee's duty status during the notice period; and

I. A signature and date line for the employee's acknowledgement of receipt of the proposal.

2.14 Performance Improvement During the Notice Period. There is no requirement to consider an employee's improved performance after the notice of proposed action has been issued. Supervisors have the authority to recognize improved performance after a notice has been issued if the situation so warrants.

2.15 Unacceptable Performance/Less Than Fully Successful Performance Prior to an Opportunity to Improve. A supervisor may not rely solely on unacceptable performance by a PMS employee or less than fully successful by a PMRS employee that occurs prior to an employee's opportunity to improve as the basis for proposing a reduction in grade or removal action under these procedures. To do so would render the employee's opportunity to improve meaningless. However, in addition to relying on instances of unacceptable or less than fully successful performance which occur during or following the employee's opportunity to improve, the supervisor may rely on instances of unacceptable/less than fully successful performance which occurred prior to the beginning of the opportunity to improve, so long as the instances occurred within 1 year prior to the notice of proposed action. Performance that is unacceptable/less than fully successful prior to the opportunity to demonstrate acceptable performance serves primarily as the basis for initiating the employee's opportunity to improve and need not be listed in the advance notice of proposed action unless the supervisor wishes to rely on such instances as support for the overall performance determination.

2.16 Unacceptable/Less Than Fully Successful Performance During an Opportunity to Improve. A supervisor may base a proposed reduction in grade or removal action solely or partially on the PMS employee's unacceptable performance or the PMRS employee's less than fully successful performance during an opportunity to improve so long as the instances occurred within 1 year prior to the notice of proposed action.

2.17 Unacceptable/Less Than Fully Successful Performance Following an Opportunity to Improve. A supervisor may propose action under these procedures based solely or partially on instances of unacceptable performance (PMS employees)/less than fully successful performance (PMRS employees) that occur following the employee's opportunity to improve if (a) the employee's performance following the opportunity to improve is unacceptable or below fully successful in one or more of the critical elements which formed the basis of the opportunity to improve (and the employee's performance standards for the critical elements at issue have not been revised substantially); and (b) the unacceptable or less than fully successful performance occurred within 1 year from the beginning of the opportunity to improve. Further, the instances of unacceptable or less than fully successful performance relied upon by the supervisor in making his/her performance determination must have occurred within the 1 year period ending on the date of the advance notice.

2.18 Final Written Decision. A final written decision on the proposal to reduce in grade or remove shall be issued to the employee within 30 days after the end of the advance notice period. The decision notice must be given to the employee at least 24 hours prior to the time the action becomes effective. The decision may be issued to the employee prior to the end of the advance notice period but only after the employee has been provided with a reasonable opportunity to respond to the proposed action. A decision may not be effected until after the advance notice period has expired. The decision to reduce in grade or remove an employee can either be made by the proposing official with the concurrence of a higher level official, or by a higher level official than that of the proposing official. When the proposing official also serves as the deciding official, a higher level official will sign the decision letter on a concurrence line as evidence of agreement with the action. As with the proposal notice, the notice of decision must be reviewed by the employee's servicing personnel office prior to issuance, and a signed copy of the final decision must be provided to the servicing personnel office when issued. Contents of the decision letter must include the following:

A. Instances of unacceptable performance by the PMS employee/less than fully successful performance by the PMRS employee upon which the action is based. Where the charges and instances of performance deemed not acceptable are stated with sufficient specificity in the proposal notice, it is not necessary to repeat them in the decision notice in order to satisfy the requirement that the specific instances of deficient performance be stated. A direct reference to the charges and instances of unacceptable performance found sustained is sufficient. Where not all of the instances of unacceptable or less than fully successful performance cited in the proposed notice are accepted by the deciding official, the decision notice should specify the instances that are being relied on and which are not;

B. Consideration of the employee's oral and/or written reply. Supervisors must consider all of the issues raised by the employee in the oral/written reply, and include a statement to that effect in the decision notice. Though not required, it is strongly recommended that the employee's oral/written response be formally addressed in the decision notice;

C. The employee's applicable grievance and/or appeal rights. Notice of the employee's appropriate appeal rights shall include:

(1) Notice of the time limits for appealing to the Merit Systems Protection Board (MSPB), including notification that if the employee does not submit an appeal within the time set by statute, regulation, or order of an administrative law judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The administrative law judge will provide the employee an opportunity to show why the appeal should not be dismissed as untimely;

(2) The address of the appropriate MSPB office for the appeal;

(3) A copy or access to a copy of the MSPB regulations;

(4) A copy of MSPB's appeals form; and

(5) A notice of any rights the employee has to file a grievance.

2.19 Extension of the Advance Notice Period. An additional 30-day extension of the required 30-day advance notice period is hereby permitted when necessary. Additionally, OPM regulations provide for a further extension beyond 60 days for the following reasons:

A. To obtain and/or evaluate medical information when the employee has raised a medical issue in the answer to a proposed reduction in grade or removal;

B. To arrange for the employee's travel to make an oral reply to an appropriate official, or the travel of an official to hear the employee's oral reply;

C. To consider the employee's answer if an extension to the period for an answer has been granted (e.g., due to the employee's illness or incapacitation);

D. To consider reasonable accommodation of a handicapping condition;

E. To consider positions to which the employee might be reassigned or reduced in grade; or

F. To comply with a stay order by the MSPB under 5 USC 1208.

If an extension of a notice period is needed for a reason other than those cited above, prior approval must be requested from the Chief, Employee Relations Division, Office of Employee and Labor Relations, Office of Personnel Management, 1900 E Street, NW., Washington, D.C. 20415. Such requests shall be made by the Regional Personnel Officers or the Chief, Division of Personnel Management, as appropriate. In most cases, however, supervisors do not need more time than the original 30-day advance notice period and the additional 30 days provided for by these regulations. Even without an extension, the decision need not be made until 30 days after the expiration of the advance notice period. Further, while a decision is required within 30 days of the expiration of the notice period, it need not be made effective until later if necessary.

2.20 Appeal Rights. An employee who has been reduced in grade or removed under this chapter may appeal to the Merit Systems Protection Board if the employee is covered by the procedural requirements of this chapter and is:

A. In the competitive service and has completed a probationary or trial period;

B. In the competitive service serving in an appointment which is not subject to a probationary or trial period, and has completed 1 year of current continuous employment in the same or similar position under other than a temporary appointment limited to 1 year or less;

C. A preference eligible in the excepted service who has completed 1 year of current continuous employment in the same or similar position(s); or

D. A nonpreference eligible in the excepted service who has completed 2 years of current continuous employment in the same or similar positions under other than a temporary appointment limited to 2 years or less, and is covered by subparts C and D of 5 CFR Part 752.

2.21 Grievance Rights of Bargaining Unit Employees. A bargaining unit employee who has been reduced in grade or removed under this chapter may either appeal to the MSPB or file a grievance under an applicable negotiated grievance procedure (but not both) if the reduction in grade or removal action falls within the coverage of the negotiated grievance procedure (i.e., is not excluded by the parties to the collective bargaining agreement), the employee is covered by the procedural requirements of this chapter, and the employee meets one of the criteria specified in 2.20, A - D, above.

2.22 Performance-Based Action File. A performance-based action file must be established for each performance-based case. The file must not contain any document that is not made available to the employee. The file will be disclosed and maintained in accordance with the Privacy Act and Freedom of Information Act. The file will, at a minimum, consist of the following as developed:

A. The PIP;

B. Notice of proposed action;

C. Employee's written reply and/or a summary of the employee's oral reply;

D. Decision notice;

E. Any supporting material including documentation of supervisory assistance provided the employee during the opportunity to improve his/her performance or samples of unsatisfactory work products;

F. Proof of OPM-approved performance appraisal system; and

G. Copy of the employee's performance elements and standards, including the date they were communicated to the employee.

2.23 Requirements for Retaining Records on Performance-Based Actions. When a performance-based action has been effected under this chapter and the employee has not appealed the action, the records specified in 2.22 must be retained for 4 years after the effective date of the action. If the action is appealed, the records must be maintained in the file for 4 years after the case is closed. An exception occurs where the employee is not reduced in grade or removed because of performance improvement during the advance notice period, and the employee's performance continues to be acceptable for 1 year from the date of the advance written notice. In this case, any entry or other notation of the performance for which the action was proposed shall be removed from any record relating to the employee.

2.24 Alternative Procedures. When both performance and conduct are the basis for proposing demotion or removal, the procedures found in the Service regulations on Disciplinary and Adverse Actions, 227 FW 2, must be used. Additionally, actions taken solely for deficient performance may be taken under the authority of 5 USC Chapter 75 (Adverse Actions) for certain situations and when the regulatory and procedural requirements of that authority can be met. Chapter 75 action may be appropriate when there is a belief that the inadequate performance is intentional; is caused by sloppy workmanship, carelessness, or lack of attention; and when the employee does not respond to initial counseling efforts.

2.25 Effect of Unacceptable Performance on Within-Grade Increases. A PMS employee performing at an unacceptable level in one or more critical elements shall not be granted a within-grade increase. (See 370 DM 531 for regulations on denial of within-grade increases.)

2.26 Consideration of Medical Conditions. If an employee alleges that a medical condition is causing his/her unsatisfactory performance, he/she shall be permitted a reasonable amount of time to furnish medical documentation of the claimed medical condition for consideration of reasonable accommodation. FPM Chapter 339 contains considerable guidance that addresses medical issues relating to employee performance problems. In accordance with the criteria and procedures listed in those regulations, an employee may be offered (or ordered under certain circumstances) a medical examination in connection with his/her claim of a medical condition that impacts upon performance. If an employee alleging a medical condition has the requisite years of service under the Civil Service Retirement System or the Federal Employees Retirement System, the employee shall be provided information concerning application for disability retirement. An employee's application for disability retirement shall not preclude or delay a performance-based action.


For additional information regarding this policy, contact the Division of Human Capital. For more information about this Web page, contact Krista Bibb, in the Division of Policy and Directives Management.


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