
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC4303]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                     Subpart C--Employee Performance
 
                    CHAPTER 43--PERFORMANCE APPRAISAL
 
                    SUBCHAPTER I--GENERAL PROVISIONS
 
Sec. 4303. Actions based on unacceptable performance

    (a) Subject to the provisions of this section, an agency may reduce 
in grade or remove an employee for unacceptable performance.
    (b)(1) An employee whose reduction in grade or removal is proposed 
under this section is entitled to--
        (A) 30 days' advance written notice of the proposed action which 
    identifies--
            (i) specific instances of unacceptable performance by the 
        employee on which the proposed action is based; and
            (ii) the critical elements of the employee's position 
        involved in each instance of unacceptable performance;

        (B) be represented by an attorney or other representative;
        (C) a reasonable time to answer orally and in writing; and
        (D) a written decision which--
            (i) in the case of a reduction in grade or removal under 
        this section, specifies the instances of unacceptable 
        performance by the employee on which the reduction in grade or 
        removal is based, and
            (ii) unless proposed by the head of the agency, has been 
        concurred in by an employee who is in a higher position than the 
        employee who proposed the action.

    (2) An agency may, under regulations prescribed by the head of such 
agency, extend the notice period under subsection (b)(1)(A) of this 
section for not more than 30 days. An agency may extend the notice 
period for more than 30 days only in accordance with regulations issued 
by the Office of Personnel Management.
    (c) The decision to retain, reduce in grade, or remove an employee--
        (1) shall be made within 30 days after the date of expiration of 
    the notice period, and
        (2) in the case of a reduction in grade or removal, may be based 
    only on those instances of unacceptable performance by the 
    employee--
            (A) which occurred during the 1-year period ending on the 
        date of the notice under subsection (b)(1)(A) of this section in 
        connection with the decision; and
            (B) for which the notice and other requirements of this 
        section are complied with.

    (d) If, because of performance improvement by the employee during 
the notice period, the employee is not reduced in grade or removed, and 
the employee's performance continues to be acceptable for 1 year from 
the date of the advance written notice provided under subsection 
(b)(1)(A) of this section, any entry or other notation of the 
unacceptable performance for which the action was proposed under this 
section shall be removed from any agency record relating to the 
employee.
    (e) Any employee who is--
        (1) a preference eligible;
        (2) in the competitive service; or
        (3) in the excepted service and covered by subchapter II of 
    chapter 75,

and who has been reduced in grade or removed under this section is 
entitled to appeal the action to the Merit Systems Protection Board 
under section 7701.
    (f) This section does not apply to--
        (1) the reduction to the grade previously held of a supervisor 
    or manager who has not completed the probationary period under 
    section 3321(a)(2) of this title,
        (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 or who has not completed 1 year of 
    current continuous employment under other than a temporary 
    appointment limited to 1 year or less, or
        (3) 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 positions.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95-454, title II, 
Sec. 203(a), Oct. 13, 1978, 92 Stat. 1133; Pub. L. 101-376, Sec. 2(b), 
Aug. 17, 1990, 104 Stat. 462.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
                     5 U.S.C. 2004.                Sept. 30, 1950, ch.
                                                    1123, Sec.  5, 64
                                                    Stat. 1098.
------------------------------------------------------------------------

    The words ``required by this chapter'' are omitted as unnecessary.
    Standard changes are made to conform with the definitions applicable 
and the style of this title as outlined in the preface to the report.


                               Amendments

    1990--Subsec. (e). Pub. L. 101-376 amended subsec. (e) generally. 
Prior to amendment, subsec. (e) read as follows: ``Any employee who is a 
preference eligible or is in the competitive service and who has been 
reduced in grade or removed under this section is entitled to appeal the 
action to the Merit Systems Protection Board under section 7701 of this 
title.''
    1978--Pub. L. 95-454 substituted ``Actions based on unacceptable 
performance'' for ``Performance-rating plans; requirements for'' in 
section catchline and in text substituted provisions relating to actions 
based on unacceptable performance, for provisions relating to 
requirements for performance-rating plans.


                    Effective Date of 1990 Amendment

    Section 2(c) of Pub. L. 101-376 provided that: ``The amendments made 
by this section [amending this section and section 7511 of this title] 
shall apply with respect to any personnel action taking effect on or 
after the effective date of this Act [see below].''
    Section 4 of Pub. L. 101-376 provided that: ``This Act and the 
amendments made by this Act [amending this section, sections 7511 and 
7701 of this title, and enacting provisions set out as notes under this 
section and section 7501 of this title] shall become effective on the 
date of the enactment of this Act [Aug. 17, 1990], and, except as 
provided in section 2(c) [set out above], shall apply with respect to 
any appeal or other proceeding brought on or after such date.''


                    Effective Date of 1978 Amendment

    Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, 
see section 907 of Pub. L. 95-454, set out as a note under section 1101 
of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 2302, 7121, 7512, 7701, 9508 
of this title; title 31 section 732.
