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  • Writer's pictureKevin Crayon II

Fired for Performance? Appeal to the MSPB (Updated 2023).

Updated: Jan 6, 2023

Removals Due to Performance Under Chapter 43

This article focuses on performance-based removals appealable to the Merit Systems Protection Board (#MSPB) in the federal civil service under Chapter 43 of Title 5 of the United States Code, and Part 432 of Title 5 of the Code of Federal Regulations. These laws require certain federal agencies to provide certain employees a meaningful opportunity to improve performance, along with other protections, before removing them.

The Deck Used to be Stacked Against Employees for Performance-Based Removals.

In its publication titled Addressing Poor Performers and the Law, the MSPB explains that the intention of Chapter 43 was to make it easier for employers to terminate poorly performing employees by lowering the burden of proof when the case is appealed to the MSPB. The MSPB also advises employers on how to address unacceptable performance.

Therefore, If an agency complies with the heavy duty burdens imposed by Chapter 43, then the deck can be stacked in favor of the agency when the case is appealed to the MSPB, which tends to look favorably upon agencies in these instances. Moreover, the MSPB cannot reduce the penalty under Chapter 43, and so the removal is either reversed or sustained.

Knowing what an agency is required to do by law, however, enables you to determine whether your rights were violated. As discussed further below, there can be many ways an employee can challenge a wrongful removal under Chapter 43, including challenging placing you on a performance improvement plan (PIP) in the first place.

Now, Agencies Have to Justify Placing you on a PIP.

Agencies would set employees up with frivolous or retaliatory performance improvement plans (PIP) to get the ball rolling on the removal process. The MSPB used to not require Agencies to consider Pre-PIP performance. That has now been ruled to be contrary to law where the Agency must demonstrate that you "continued" to have unacceptable performance.

In 2022, in a landmark case, Santos v. Nasa, the Federal Circuit ruled that Agencies, according to the law, now have to show that your performance was deficient prior to placing you on a Performance Improvement Plan (PIP), not just during the PIP period.

In other words, Agencies cannot slap you with a PIP without justification (as they routinely did before in order to start setting you up for removal). Moreover, it is possible to show that placing you on a PIP in the first place was unlawful retaliation or discrimination.

Before the Proposed Removal: The Requirement of a Reasonable (and Meaningful) Opportunity to Improve Performance

Even if your performance began the decline, before the agency can propose your removal under Chapter 43, it must give you a reasonable opportunity to improve your performance. This is commonly accomplished with a performance improvement plan ("PIP"). The Agency has to specify what performance is not acceptable, what standard you must attain to be acceptable, and warn you that you can be removed unless performance becomes - and remains - acceptable.

You can essentially be "on probation" for up to a year after being notified of the unacceptable performance. Even after the PIP or improvement period ends, if management decides your performance fell below the acceptable threshold during the one (1) year period, your removal can be proposed without further PIP's or opportunities to improve.

The agency is required to offer assistance to improve unacceptable performance during the PIP or improvement period. Therefore, the opportunity to improve must be fair and meaningful, such as providing timely and constructive feedback and coaching that is not just negative or merely pointing out errors.

Proposed Removal: Your Procedural Rights Under Chapter 43

If you're served with a proposed removal under Chapter 43, you have due process and procedural rights, including 30 days advance notice, the right to representation, reasonable time to answer, and a written decision that identifies specific examples of unacceptable performance. See 5 U.S.C. § 4303; 5 C.F.R. § 432.105. The agency can only use examples of unacceptable performance dating back one (1) year from the proposed removal, so long as the agency gave you an opportunity to improve before proposing your removal.

The 30-day notice period can be extended for various reasons, including medical reasons. You have the right both a written and an oral reply, and it is usually advisable to take advantage of both options. A written decision must be issued to you within 30 days after your 30-day advanced notice period expires.

How to Challenge a Chapter 43 Removal

Assuming the agency's performance standards are approved by OPM and properly communicated to the employee, he or she can challenge whether the agency's performance standards are valid. This means that the performance standards must inform the employee what is necessary to achieve successful performance. Additionally, you can challenge generic standards, backward standards, and absolute standards.

You can also allege due process or procedural violations during the improvement period or after the removal is proposed as described further above. You can challenge whether you were given a meaningful opportunity to improve if the agency was lax in providing meaningful assistance to improve.

You can challenge the case on the merits by showing that the agency cannot prove by substantial evidence that your performance was unacceptable. For example, the agency may fail to prove specific examples where you allegedly failed to meet the requirements of the PIP or improvement period, or within one year of being notified of unacceptable performance. "Substantial evidence" means that a reasonable person could reach the conclusion that performance was unacceptable, even if other reasonable people might disagree.

You can also allege affirmative defenses. An affirmative defense occurs when an employee claims that an action should not be sustained because: (1) there was a harmful error in the agency’s procedures for taking the action; (2) the decision was based on a prohibited personnel practice; or (3) the decision was otherwise not in accordance with the law. This means that, even if the agency can prove its case, you may be able to prove that the removal was taken because of discrimination, retaliation, or other unlawful reasons and prohibited personnel practices.

These just a few of the ways you may be able to challenge a wrongful removal under Chapter 43. Should you be served with a notice under this section, contact competent counsel to discuss your options.


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