At any time during the performance appraisal cycle that an employee's performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his or her position. The agency should also inform the employee that unless his or her performance in the critical element(s) improves to and is sustained at an acceptable level, the employee may be reduced in grade or removed. For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position. As part of the employee's opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.
[87 FR 67782, Nov. 10, 2022]
Notes of Decisions
Cited in
35
cases (
15 in the last 5 years), 2007–2026 · leading case:
Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010).
Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010).
“See 5 C.F.R. § 432.104 ; ADS 462.3.3.1. Given their serious consequences affecting Porter’s “ ‘position, grade level, salary, or promotion opportunities,’ ” the negative assessment together with the PIP constituted a material adverse action.”
Jones v. Johanns, 264 F. App'x 463 (6th Cir. 2007).
“” 5 C.F.R. § 432.104 . “Removal” is defined as “involuntary separation of an employee from employment with the agency.”
Adam Robinson v. DHS Off. of Inspector Gen., 71 F.4th 51 (D.C. Cir. 2023).
“§ 4303 ; 5 C.F.R. § 432.104 , that the DHS’s decision to remove him was based at least in part on his race and sex in violation of Title VII, 42 U.”
Jones v. Merit Sys. Prot. Bd., 589 F. App'x 972 (Fed. Cir. 2014).
“§ 4303 , as interpreted by 5 C.F.R. § 432.104 and applicable provisions of the collective bargaining agreement, and that the agency’s *974 decision to remove her for unacceptable performance was reasonable.”
Furey v. Mnuchin, 334 F. Supp. 3d 148 (D.C. Cir. 2018).
“§ 4303 ; 5 C.F.R. §§ 432.104 -06. The judge found that the agency had proven by substantial evidence that it had established performance standards for plaintiff's position, that they had been communicated to her, and that the PIP requirements reflected those performance…”
Zonnytta Bolton v. Carolyn Colvin, 674 F. App'x 282 (4th Cir. 2017).
· cites it 2× “§ 4308 (providing rights and safeguards to which a government employee is entitled before demotion); 5 C.F.R. § 432.104 (providing criteria necessary to demote an employee); and the Rehabilitation Act of 1973, 29 U.”
Crowley v. Perdue, 318 F. Supp. 3d 277 (D.C. Cir. 2018).
“11 For example, Keegan explains that the initiation and administration of a PIP typically follow strict guidelines under 5 C.F.R. § 432.104 , 5 U.S.C. § 4302 , and internal regulations from the Office of Personnel Management.”
Appleberry v. Dep't of Homeland Sec., 793 F.3d 1291 (Fed. Cir. 2015).
“142 (Agreement Article 30(B), “Performance Improvement Plan”); 5 C.F.R. § 432.104 (“Addressing unacceptable performance”).”
Miller v. Hersman, 759 F. Supp. 2d 1 (D.D.C. 2010).
“As a result, he was placed on a 60-day PIP pursuant to 5 C.F.R. 432.104. Def.’s Stmt, of Facts ¶ 24; see Memorandum from William J.”
Lenial Brite v. Dep't of the Army (MSPB 2023).
· cites it 4× “DISCUSSION OF ARGUMENTS ON REVIEW ¶7 An agency may propose a reduction-in-grade or removal action based on an employee’s unacceptable performance in a critical element if it affords him a reasonable opportunity to demonstrate acceptable performance pursuant to 5 C.F.R. § 432.104…”
Karen Williams-Ingram v. Dep't of Vets. Affairs (MSPB 2023).
· cites it 3× “¶21 Regulations promulgated by the Office of Personnel Management provide that a tenured Federal employee is entitled to a reasonable opportunity to demonstrate acceptable performance pursuant to 5 C.F.R. § 432.104 before an agency may propose her removal or a reduction in grade…”
Harris v. SEC (Fed. Cir. 2020).
· cites it 2× “” 5 C.F.R. § 432.104 . The regula- tion focuses only on the time when the inadequacies oc- curred, placing no condition on when the notification or warning occurs.”
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