6.432.1  Reduction in Grade, Band and Removal Based on Unacceptable Performance

6.432.1.1  (01-06-2009)
Overview

  1. This IRM contains instructions for reduction in grade/payband and for removal of employees of the Internal Revenue Service (IRS) based on unacceptable performance. Reduction in grade/payband or removal for other reasons is not covered by this IRM.

6.432.1.2  (01-06-2009)
References

  1. 5 U.S.C. §4301-4305

  2. 5 CFR §432

  3. IRM 6.430.2 http://publish.no.irs.gov/IRM/P06/PDF/37672A07.PDF

  4. IRM 6.430.3 http://publish.no.irs.gov/IRM/P06/PDF/37673A07.PDF

  5. IRM 6.751

  6. IRM 6.752

6.432.1.3  (01-06-2009)
Definitions

  1. Definitions found in 5 CFR §430 and 432, applicable collective bargaining agreements, and 5 U.S.C. §4301 are applicable.

  2. In addition, "minimally successful" is defined as the level of performance between "unacceptable" and "fully successful" that is the minimum level required for retention in the position.

6.432.1.4  (01-06-2009)
Actions Covered

  1. This IRM covers reduction in grade/payband and removal of an employee based solely on "unacceptable performance" and utilizing procedures found in 5 CFR §432. (Matters excluded by 5 CFR §432 are not covered.)

6.432.1.5  (01-06-2009)
Employees Covered

  1. The provisions for employee coverage are:

    1. An employee in the competitive service, who is not serving a probationary or trial period under an initial appointment, or who has completed one year of current continuous employment under other than a temporary appointment, limited to one year or less is covered by these provisions.

      Note:

      Effective October 13, 2000, the Department of the Treasury approved extension of the probationary period from one to three years for GS-1811 Special Agent positions in Criminal Investigation (as provided under the IRS Restructuring and Reform Act of 1998).

    2. An employee in the excepted service who has completed one year of current continuous service in the same or similar position has the procedural rights under 5 CFR §432. However, only preference eligible employees in the excepted service, who have completed one year of current continuous service in the same or similar positions, have an entitlement to appeal the action to the Merit Systems Protection Board.

6.432.1.6  (01-06-2009)
Authority

  1. Delegation Order No. 81 (as revised) establishes the level of officials authorized to propose and to take final action for adverse actions. IRM 1.2.45 Delegation of Authorities for Human Resource Management Activitieshttp://publish.no.irs.gov/IRM/P01/PDF/39614C06.pdf this same authority establishes the level of officials authorized to propose and to take final action for removals and reductions in grade or pay for unacceptable performance. The deciding official must be at least one level above the organizational level of the proposing official, and must have direct line authority over that official. Delegation Order No. 81 (as revised) also establishes the lowest level to which authority may be re-delegated.

    Note:

    You should consult individual business unit delegation orders for the appropriate authority as needed.


    Delegations of Authority concerning various personnel related matters previously covered in Delegation Order 81 have been revised into several orders. For example, Delegation Order HCO-19, Delegation of Authority in Adverse/Disciplinary and Other Actions, establishes the levels of officials in HCO authorized to propose and take final action for removals and reduction in grade/pay for unacceptable performance. HCO Delegation Order Number 19 http://hco.web.irs.gov/pdf/delorder19.pdf.

  2. Delegation Order No. 81 (as revised) requires prior consultation with the servicing Labor/Employee Relations office before any notices, either proposing or effecting a removal or reduction in grade/pay, are issued to an employee

6.432.1.7  (01-06-2009)
General Requirements

  1. An employee may be reduced in grade/payband, or removed, at any time during the performance appraisal cycle in which performance in one or more critical elements or critical performance expectations of the job becomes unacceptable. However, prior to the organization proposing such an action, the employee must be given a reasonable opportunity to demonstrate acceptable performance.

  2. Instances of "unacceptable performance" by an employee must have occurred within the one-year period prior to the date of the opportunity letter in order to be used in a proposal letter.

  3. All actions based on "unacceptable performance" will be fair, equitable, and administered as timely as possible.

  4. Additional information on unacceptable performance can be found on the Office of Personnel Management (OPM) website OPM Performance Based Actions and, IRM 6.430.2 http://publish.no.irs.gov/IRM/P06/PDF/37672A07.PDFIRM 6.430.3http://publish.no.irs.gov/IRM/P06/PDF/37673A07.PDF.

6.432.1.8  (01-06-2009)
Guidelines for Identifying and Using Tax Information

  1. Tax returns or return information may not be disclosed in unacceptable performance actions, except as provided by the specific provisions of Section 6103 of the Internal Revenue Code (IRC). To the extent that a return or return information is relied upon in an unacceptable performance action, the confidentiality of the information must be safeguarded.

  2. Under the provisions of Section 6103(b)(1), a tax return is defined as "any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under the provisions of this title that is filed with the Secretary of the Treasury by, on behalf of, or with respect to any person and any amendment or supplement thereto, including supporting schedules, attachments, or lists that are supplemental to, or part of, the return so filed."

  3. Return information is defined as "a taxpayer’s identity, the nature, source or amount of his/her income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over-assessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence of liability of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition or offense, and any part of any written determination or any background file document relating to such written determination which is not open to public interpretation."

  4. Section 6103(l)(4)(A) of the Internal Revenue Code (IRC) permits the disclosure of returns or return information to an employee or former employee, or to his/her duly authorized representative, when, upon written request, the appropriate official judges the disclosure to be relevant and material to a proceeding involving personnel or claimant representative matters. Since an unacceptable performance action is a proceeding involving personnel matters, a duly authorized representative may be authorized access to returns or return information if such access is or may be relevant and material to the action. The appropriate official with delegated authority pursuant to Delegation Order No. 11-2 (as revised) will evaluate a request for disclosure, under 6103(l)(4)(A). A disclosure under 6103(l)(4)(A) requires an accounting under the Privacy Act. IRM 1.2.49 Delegation of Authorities for Communications, Liaison and Disclosure Activities http://publish.no.irs.gov/IRM/P01/PDF/39618C06.PDF.

  5. When dealing with returns and return information in letters, code the return information, attach a key, and indicate that the employee is restricted from making disclosures of tax information without proper approval. In addition, in letters proposing an unacceptable performance action, indicate:

    1. That a form letter is attached by which the employee may request a copy of the evidence file (see Exhibit 6.432.1-1);

    2. That tax information in the evidence file or in the proposal letter and its key may be used solely in the preparation for the action or proceeding;

    3. That the employee is subject to the provisions of IRC 7213 and 7431 in the event of an unlawful disclosure of tax information;

    4. That a written request must be made if the employee wishes to disclose the tax information in the evidence file or in the letter and its key to any person other than a Department of the Treasury employee in connection with that employee’s official duties with respect to this matter;

    5. That the employee designates a representative or representatives and the employee wishes to disclose the tax information to that person or persons. Each representative must sign and deliver a second form letter (included in Exhibit 6.432.1-1);

    6. That, in the proceeding or hearing, an employee or an employee’s representative may disclose the sanitized tax information contained in the evidence file, submitted by the Service, to the third party. A sanitized copy of the evidence file is normally necessary should an action be appealed to a third party. The employee or the employee’s representative may not disclose other tax information, unless a separate written request has been submitted to and approved by the Service; and

    7. That, in the event, that the disclosure of the tax information would seriously impair Federal tax administration, release of tax information to an employee and the authorization of disclosure of tax information by the employee may not be granted.

6.432.1.9  (01-06-2009)
Employee Entitlements

  1. An employee whose reduction in grade/band or removal is proposed is entitled to:

    1. Thirty (30) calendar days advance written notice stating specific instances of unacceptable performance by the employee on which the proposed action is based, and the critical elements and performance standards or critical performance expectations, of the employee's position involved in each instance of unacceptable performance;

    2. Be represented by an attorney or other representative;

    3. A reasonable time to answer orally and in writing;

    4. A reasonable time to furnish medical documentation (as defined by 5 CFR §339.102) of a medical condition to which the employee wishes consideration be given as contributing to the cause of the unacceptable performance. If the medical condition is a result of a compensable work related injury/illness, consultation with the Workers Compensation Center (WCC) is advised. (Medical information is preferably obtained and considered during the opportunity period; failing that, it should, whenever possible, be supplied within the time allowed for an oral and written answer to the proposal); and

    5. A written decision that specifies the instances of unacceptable performance on which the action is based.

  2. For bargaining unit employees, applicable collective bargaining agreements should be consulted when initiating the opportunity period to demonstrate acceptable performance and when proposing and effecting performance based actions. To the extent that provisions of IRM 6.432.1 are in specific conflict with applicable agreements, the provisions of the agreements will govern.

  3. In some instances, unacceptable performance may be addressed through procedures outlined in IRM 6.752.2http://publish.no.irs.gov/IRM/P06/PDF/33020G02.PDF (see Exhibit 6.432.1-2). When a performance based action is taken under the adverse action procedures of 5 CFR Part 752, an opportunity period is not required.

6.432.1.10  (01-06-2009)
The Opportunity To Demonstrate Acceptable Performance

  1. When an employee’s performance is initially perceived as unacceptable, the manager should counsel the employee and attempt to improve the performance through counseling. Counseling typically includes an identification of the critical elements where the performance is unacceptable, and the performance requirements for retention in the position. Memorandum on Retention Standard dated June 17,1999, the manager should also discuss with the employee recommendations for improved performance. All counseling sessions should be reduced to writing, signed and dated by the manager and the employee. If the employee refuses to sign the counseling, the documentation of refusal should be annotated by the manager and dated. (See Exhibit 6.432.1-3, Action Guide for Managers).

  2. If the employee’s work remains unacceptable, a formal counseling session will be scheduled to advise the employee that he/she will be given a formal opportunity to improve his/her performance before an action is proposed. In preparation for a formal counseling session, a list of deficiencies in the performance of the critical element(s) and performance standard(s) should be compiled. Documents illustrating the deficiencies may also be used. The manager should consult the servicing Labor/Employee Relations Specialist for guidance when he/she determines that a serious performance problem exists.

  3. A formal counseling session should then be held to notify the employee they are being issued an opportunity letter. The opportunity letter will include:

    1. The critical element(s) and performance standard(s) in which the employee is unacceptable and the exact nature of the deficiencies;

    2. The fact that failure to attain the minimum level of performance required for retention in the position ("minimally successful " ) may result in a proposal to separate the employee from the position or the Service;

    3. The name of the official to contact if the employee desires consideration of a medical condition which may have contributed to the unacceptable performance;

    4. The specific period of time that will give the employee an opportunity to demonstrate performance at the level required for retention in the position. (In determining a reasonable time to demonstrate acceptable performance, consideration should be given to the complexity of the duties, length of experience in the position, prior performance record, training, and any other relevant factors.) The initial period of time must not be less than sixty (60) calendar days and this period of time may be extended if the manager concludes that additional time is required to assess the employee’s progress. If such an extension is granted, this fact should be communicated to the employee in writing. A notice to the employee proposing either to remove or reduce in grade/payband based upon unacceptable performance may not be issued before the opportunity period has expired;

    5. Advice or guidance on what the employee may do to improve performance; and

    6. The manager’s commitment to work with the employee so that the employee might correct the performance deficiencies and a general description of what the commitment will entail.

  4. The formal counseling session should be confirmed in writing and the confirming memorandum (opportunity letter) given to the employee. (See Exhibit 6.432.1-4 or Exhibit 6.432.1-5). The opportunity period will begin with the employee’s receipt of this memorandum. If the employee is part of a bargaining unit, place at the top of the extra copy the legend: "THIS COPY MAY AT YOUR OPTION BE FURNISHED TO NTEU CHAPTER (insert appropriate chapter number)." If there is tax return information in the opportunity letter, disclosure restrictions should be included (see 6.432.1.8 above).

    Note:

    A rating of record should not be assigned to the employee during the formal opportunity to improve period. The rating of record should be postponed until the opportunity period has been completed. The manager should advise the employee the appraisal period is being extended.

  5. The manager should review the employee’s progress on a continuing basis and provide timely feedback regarding the employee's progress towards improving their performance in identified areas as outlined in the opportunity letter. The manager must ensure an appropriate amount of the employee's work during the opportunity period is reviewed. The results of all reviews must be shared with the employee. The manager must consider the employee's work performance at the end of the opportunity period in order to determine the appropriate recommended action. Therefore, all completed reviews of the employee's work during the opportunity period must support whatever final action is taken. At the conclusion of the opportunity period, the manager should determine:

    1. Whether performance is at least at a "minimally successful" level (required for retention in a position);

    2. Whether the employee’s performance, if not yet acceptable, warrants further opportunity to demonstrate acceptable performance; or

    3. What action should be taken.

6.432.1.11  (01-06-2009)
Determining an Appropriate Action

  1. If, during the period of opportunity to demonstrate acceptable performance, the employee’s performance becomes minimally successful or better, a letter (see Exhibit 6.432.1-6) should be issued informing the employee of this fact. The employee has the responsibility to maintain the improved performance. Within the one-year period following issuance of an opportunity letter, an employee whose performance becomes unacceptable in a critical element for which an opportunity period was afforded, may be removed or reduced in grade/payband without an additional opportunity period.

  2. Coordination between the manager and the Labor/Employee Relations Specialist should be on a continuing basis. At the time a manager determines an employee’s performance is unacceptable, the servicing Labor/Employee Relations Specialist should review the documentation to determine if there is sufficient evidence to support a proposed action. When sufficient evidence has been gathered, the manager should discuss his/her recommendation with the official having the delegated authority under Delegation Order No. 81 (as revised) to propose an action. IRM 1.2.45 Delegation of Authorities for Human Resource Management Activitieshttp://publish.no.irs.gov/IRM/P01/PDF/39614C06.pdf . After a determination has been made to propose that an employee be separated from the position occupied, consideration can be given to alternatives other than removal or reduction in grade/payband such as:

    1. REASSIGNMENT TO ANOTHER POSITION — Reassignment to another position may be considered when, for example, an employee who previously accepted a lateral reassignment to a new position encounters performance problems. A reassignment back to the former position or a similar position may be considered as an alternative to proposing an action based on unacceptable performance. This is only one example of when reassignment may be appropriate.

    2. VOLUNTARY REDUCTION IN GRADE/BAND OR REASSIGNMENT — If an employee acknowledges an inability or an unwillingness to fulfill the responsibilities of a position occupied, consideration may be given to placing the employee in a position he/she voluntarily requests if such a position is available, if he/she is qualified and suitable for the position and if the agency reasonably anticipates the employee will be able to satisfactorily perform in the position.

    3. RETIREMENT OR RESIGNATION— If an employee is eligible to retire, the manager may want to raise the possibility of retirement prior to recommending separation of the employee from the position occupied. If an employee is not eligible for retirement, the possibility of the employee resigning may be discussed. However, it must be clear it is solely the employee’s choice whether or not to pursue retirement or resignation. The servicing Labor/Employee Relations Specialist should be consulted before this discussion is held. Also, the possible eligibility of an employee for discontinued service retirement (DSR) should be taken into consideration. OPM Form 1510, Certification of Agency Offer of Position and Required Documentationhttp://www.opm.gov/forms/pdf_fill/opm1510.pdf , should be included in the decision letter to employees who may qualify for DSR. DSR language in Exhibit 6.432.1-8 should be included in the decision to remove or demote the employee. Further information regarding DSR can be found in Chapter 44 of the OPM CSRS and FERS Handbook for Personnel and Payroll Offices. OPM CSRS and FERS Handbookhttp://www.opm.gov/asd/htm/hod.htm.

    4. DISABILITY RETIREMENT—When it is determined that an employee's unacceptable performance may be the result of a mental or physical disability and reasonable accommodation to such disability has been made, and employee meets the service requirements for a disability retirement, the possibility of disability retirement may be explored before recommending the separation of the employee from the position occupied. If the mental or physical disability is a result of a compensable work related injury, consultation with the Workers Compensation Center (WCC) is advised.

6.432.1.12  (01-06-2009)
Effect on Within Grade Increase

  1. While documenting an employee's unacceptable performance, an acceptable level of competence determination for a within grade increase may occur. Obviously, a manager cannot certify an employee's performance as acceptable and shortly thereafter initiate a proposed action for unacceptable performance, therefore, if an action based on unacceptable performance is contemplated, action should be taken to deny the within grade increase utilizing the procedures in IRM 6.500.1.5 http://www.irs.gov/irm/part6/ch13s01.html. Issuance of the opportunity letter referred to in 6.432.1.10(4) above is insufficient to meet the procedural requirement of 5 CFR §531.409.

6.432.1.13  (01-06-2009)
Notice of Proposed Action Based on Unacceptable Performance

  1. A notice of proposed action based on unacceptable performance (seeExhibit 6.432.1-7) will:

    1. Include a reference to the prior notification that the employee’s performance was unacceptable, and to the opportunity to improve that performance. Indicate that the employee has failed to perform at the level required for retention in the position.

    2. Include a statement that the notice is being issued in accordance with the provisions of Part 432 of the Code of Federal Regulations (CFR).

    3. Include the specific action proposed, i.e., removal or reduction in grade/band.

    4. Include a statement that the proposed action may be effective at any time after thirty (30) calendar days from the date of receipt of the proposed notice. In computing the minimum thirty (30) full calendar day notice period, the day on which the notice is delivered should not be counted since it is not a full day. If the thirtieth (30th) day of the notice period is a Saturday, Sunday, or legal holiday, the notice period is extended to include the next business day. The decision on the proposed action should generally be made within thirty (30) calendar days after the date of the expiration of the notice period.

    5. List specific critical element(s), where unacceptable performance has occurred. Under the critical element(s), the minimum performance standard should be listed along with the aspects that the employee is failing to meet and specific instances of unacceptable performance. The proposal notice may include instances of unacceptable performance that occurred within a one (1) year period ending on the date of the notice of proposed action. However, it is essential that instances of unacceptable performance that occurred during the employee’s opportunity period be included. The following are examples of the way specifications may be written:

      Example 1: Customer Satisfaction - Knowledge — The case of Taxpayer A involved a Tax Delinquent Account (TDA) that you received on _________________. IRM ________________calls for an initial contact on a case of this nature within ___________ days. In a case review of _______, your manager found that you had taken no action and directed you to make an immediate lien determination, a thorough first taxpayer contact, and to follow up with appropriate enforcement if warranted. The lack of action on this case represents a failure to meed aspects 2A, 2B, and 2C of the performance standards for this critical element.

      Example 2: Customer Satisfaction - Application — The case of Taxpayer B involved a response to the taxpayer regarding a math error notice. You input the IDRS Special Letter (3064C) in error. You did not provide adequate information in your communication to the taxpayer. You did not accurately explain how the taxpayer's overpayment would be applied and to which tax years. Your failure to clearly and accurately identify the issues and inform the taxpayer demonstrated a failure to meet aspect 3B of the performance standards for this critical job element.


      Example 3: Business Results - Quality — The case of Taxpayer C involved a taxpayer request for a Schedule A. You input a REQ54 to decrease the taxable income; however, you did not address all issues on the account. Specifically, you did not release the -L freeze condition. You also input a letter that was not necessary because an adjustment notice will automatically be issued. Your failure to input account information accurately and your failure to complete thorough research indicates failure to meet aspects 4A and 4B of the performance standards for this critical job element.

    6. Include a statement that the employee has a reasonable time in which to answer orally and in writing and to submit affidavits in support of such reply. The employee must request an oral reply within seven (7) calendar days of receipt, of the letter of proposed action. A reasonable time for a written reply to be submitted is considered to be fifteen (15) calendar days from receipt of the proposal letter. In instances where the employee requests a reasonable extension of time to submit an oral or written reply, the extension for good reason may be granted. In determining whether an extension will be granted, consideration should be given to the procedural requirements of 6.432.1.19 below.

    7. Include the name of the official to contact if the employee desires consideration of a medical condition that may have contributed to the cause of the proposed unacceptable performance action. (SeeExhibit 6.432.1-8 for a sample letter that may be used to notify the employee of documentation to be submitted.)

    8. Include the name of the official to whom any written reply or request for an oral reply should be sent (usually the proposing official) and the address to which it should be sent.

    9. Include a statement that the employee has the right to be represented by an attorney or other representative.

    10. Include a statement concerning the employee’s right to have or review the material relied on, and from whom it should be requested or where it may be reviewed. The employee, upon request, will be furnished a copy of all or any part of the material. The supporting material available to the employee is that material on which the proposal was based, i.e., relevant documentation of instances of unacceptable performance. If there is tax return information in the material relied on, disclosure restrictions should be included (see 6.432.1.8 above and Information Notice: Disclosure Alert for Labor Employee Relations Employees as well as, Information Notice: Form 5482 Record of Disclosure (Privacy Act of 1974) for Non Tax Records).

    11. Include, providing the employee is in official duty status, a statement as to how much official time will be allowed to review the supporting material, to secure affidavits, to prepare the reply, and the official (and his/her address) from whom the time should be requested.

    12. Include a statement that no final decision will be made in this matter until the expiration of the thirty (30) calendar day advance notice and that any replies submitted will be given full consideration.

    13. Include a statement that the employee will be notified in writing of the final decision.

    14. Include a statement regarding the work status of the employee during the advance notice period.

    15. Identify, if appropriate, an official who the employee may contact (name or office) for clarification of procedures or review of regulations.

6.432.1.14  (01-06-2009)
Delivery of Advance Notice

  1. The burden of proof rests with the Internal Revenue Service to establish that delivery and receipt of an advance notice was timely.

  2. The most desirable delivery method is personal delivery of the notice to the employee. When this occurs, the employee acknowledges receipt by signing a copy of the notice showing date and time of receipt. (If the employee refuses to sign for receipt, the person delivering the notice attests to delivery by a statement to that effect and signs the copy. Any witnesses to the refusal should also sign the copy.) When the employee is absent because of travel or official leave of a temporary nature, deliver the notice personally upon the employee’s return, rather than attempt delivery by mail. In cases of extended leave, delivery of the notice to the employee's home should be considered in order to insure timely delivery. Personal delivery should be made by the employee's manager who may be accompanied by a Labor/Employee Relations Specialist. If management has reason to believe there is a risk involved, delivery may be made by a Criminal Investigation Special Agent or TIGTA Agent.

  3. If, because of the circumstances, personal delivery by a representative of the Service is not possible, the notice will be delivered by mail. Since mail delivery represents a calculated risk because timely delivery must be assumed, the notice should be sent via "certified mail" as well as by first class mail in order to assure confirmation of delivery.

6.432.1.15  (01-06-2009)
Unacceptable Performance File

  1. All relevant documentation used for proposing an action based on unacceptable performance should be gathered and placed in a file. This material should consist of documents used by the proposing official to support the fact that the employee failed to meet the established performance standard in one or more critical element(s) of his/her position, and all documentation regarding the opportunity afforded the employee to demonstrate acceptable performance. The following information should also be added to this file:

    1. Copy of the notice of proposed action;

    2. Any written reply;

    3. Transcript of oral reply, if any;

    4. Copy of notice of final decision;

    5. Copies of all correspondence to and from the employee and/or representative; and

    6. Proof of delivery of proposed notice and decision letters.

    7. Two (2) copies of all evidence relied upon in the reasons and specifications are made available (upon request) to the employee and/or representative for review. Caution should be used in releasing tax information (see 6.432.1.8 above).

6.432.1.16  (01-06-2009)
Oral Reply

  1. An employee has the right to reply personally to the proposed action. Refer to IRM 6.752 for procedures used to conduct an oral reply.

  2. Verbatim transcripts of the oral reply will be completed in actions based on unacceptable performance.

  3. Special arrangements for expedited service from the court reporting service may be required to meet the thirty (30) day time limit. Information Notice: Court Reporter Procurement

6.432.1.17  (01-06-2009)
The Decision Notice

  1. The final decision on the proposed action should generally be issued to the employee within thirty (30) calendar days after the date of expiration of the notice period. This time frame has been established in 5 U.S.C. §4303(c)(1).

  2. The final decision notice (see Exhibit 6.432.1-9) should include:

    1. Reference to the proposed action based on unacceptable performance citing the date of the notice.

    2. Reference to any and all replies made by the employee and a statement that these replies were considered; when no reply is made, the statement should reflect that fact. For a bargaining unit employee, a statement that performance during the advance notice period has been considered.

    3. A statement specifying the determination reached on each reason and specification in the proposed action, i.e., whether each is sustained or not sustained.

    4. If a bargaining unit employee raised an issue of discrimination, a statement of the legitimate nondiscriminatory management reasons for the action.

    5. A statement that addresses any factual disputes raised in the employee’s reply or replies and why each dispute was rejected.

    6. A statement that indicates consideration was given to any medical documentation furnished by the employee.

    7. The nature of the action to be effected.

    8. The effective date of the action, which must follow the date of the employee’s receipt of the decision notice. Consequently, in establishing the effective date of the action, sufficient time must be allotted to ensure delivery of the decision notice, particularly if the employee is in a non-duty status. A removal action becomes effective at 12:00 midnight on the effective date and, a reduction in grade/payband action becomes effective at 12:01 am on the effective date.

    9. A statement that the employee may appeal the merits and procedures of the action after the effective date of this action and ending thirty (30) calendar days after that date to the appropriate Merit Systems Protection Board (MSPB) Office. The address of the appropriate MSPB Office for filing the appeal form should also be included. (This statement would not be included in the decision letter to a non-preference eligible employee in the excepted service that has completed less than two (2) years of current continuous service in the same or similar position, since such employees have no appeal rights to MSPB.)

    10. A statement that an appeal based in whole or in part on discrimination as part of this action may be appealed to the Merit Systems Protection Board. A statement that if it is alleged that the action was based in whole or in part on discrimination, as an alternative, an appeal may be pursued through the Service’s discrimination complaint system along with any other issue appealable to MSPB under the provisions of 29 CFR §1614 of the Equal Employment Opportunity Commission Regulations. (In a letter to a non-preference eligible employee in the excepted service who has completed less than two years of current continuous service, include a statement that if it is alleged that the action was based in whole or in part on discrimination, an appeal may be pursued through the Service’s discrimination complaint system under the provisions of 29 CFR §1614 of the Equal Employment Opportunity Commission Regulations.)

    11. A statement advising the employee of his or her eligibility for disability retirement. (5 CFR §831.1203(b)) when a removal is based on reasons apparently caused by a medical condition.

    12. A statement of the applicable grievance rights, if any. A bargaining unit employee in the competitive service who has completed a probationary or trial period is entitled to appeal through the grievance/arbitration procedure of the negotiated agreement with the consent of the union. A bargaining unit employee in the excepted service who is a preference eligible employee and who has completed one year of current continuous service in the same or similar position would also be entitled to appeal through the grievance/arbitration procedure. A non-preference eligible employee in the excepted service who has completed less than two years of current continuous service in the same or similar position would be entitled to appeal through the agency grievance procedure.

    13. If considered appropriate, the name of the Internal Revenue Service official (usually the servicing Labor/Employee Relations Specialist) from whom further information concerning the appeal procedures can be obtained.

    14. If the employee meets the age and service requirements, a statement concerning eligibility for discontinued service retirement and a certified copy of OPM Form 1510, Certification of Agency Offer of Position and Required Documentation. OPM Form 1510http://www.opm.gov/forms/pdf_fill/opm1510.pdf (Note: Box 14 of OPM Form 1510 should be signed by the servicing Labor/Employee Relations office manager).

    15. Statement that Standard Form 50 is attached, or if waiting for the Standard Form-50 would unduly delay delivery of the decision, a statement that Standard Form 50 will be forthcoming.

  3. If the decision is not to reduce in grade/band or remove the employee, and the employee’s performance continues to be acceptable for one (1) year from the date of the proposal letter, any entry or other notation of the unacceptable performance for which the action was proposed shall be removed from any agency record relating to the employee.

6.432.1.18  (01-06-2009)
Right to Representation

  1. An employee shall be entitled to choose a representative provided the representative is not an individual whose activities as a representative would cause a conflict of interest or position; whose release from his/her official position would give rise to unreasonable cost to the Government; or whose priority work assignments would preclude the release from official duties.

  2. When it is determined that a request for a particular representative must be disallowed, the servicing Labor/Employee Relations specialist will be consulted for advice and for procedural requirements. A notice for disallowance of a representative will be issued within five (5) workdays after receipt of the designation of a representative. It will specify the basis for the disallowance. If the disallowance is made for reasons of conflict of interest or position, the letter must explain how the conflict exists. It is insufficient to state: "Your representative is being disallowed because of conflict of interest."

  3. The servicing Labor/Employee Relations specialist will send a copy of the disallowance to the Human Capital Office, Workforce Relations Division (Attn: OS:HC:R) and to the LR/ER Strategic Policy Office (Attn: OS:HC:R:P) within five (5) workdays of the date of the decision to disallow the representative.

  4. Should the employee wish to appeal the disallowance of the representative determination, the appeal must be submitted in writing within seven (7) workdays after the receipt of the disallowance decision to:

    1. Director
      Workforce Relations Division
      (Attn: OS:HC:R)
      1111 Constitution Avenue, NW
      Room 1409 IR
      Washington, DC 20224.

    The decision denying the selected representative must be attached to the appeal. The Director will make the final decision regarding the disallowance within ten (10) workdays of the date of receipt of the employee’s appeal. IRM 6.752.2.7.4 http://publish.no.irs.gov/IRM/P06/PDF/33020G02.PDF

6.432.1.19  (01-06-2009)
Extension of the Advance Notice Period

  1. The notice period for a reduction in grade or removal may be extended for a period not to exceed thirty (30) calendar days, i.e., a total of sixty (60) calendar days from the date of the issuance of the proposal notice.

  2. The advance notice may be further extended without OPM approval for the following reasons:

    1. To obtain and/or evaluate medical information when the employee has raised a medical issue in the reply;

    2. To arrange for the employee’s travel to make an oral reply to an appropriate agency official;

    3. To consider the employee’s reply when the time to make the reply was extended at the employee’s request;

    4. To consider reasonable accommodation of a handicapping condition; or

    5. To comply with a stay ordered by MSPB at the request of the Office of Special Counsel.

  3. In unusual circumstances, extension for reasons other than those listed in (2) above may be necessary. Because extensions for other reasons require approval from the Office of Personnel Management, the following procedures will apply:

    1. As soon as possible, but not later than the forty-fifth (45th) calendar day of the advance notice period, an assessment should be made as to the need to extend the advance notice period beyond the initial thirty (30) calendar days plus the discretionary thirty (30) calendar day period.

    2. If it is determined that such a need exists, the Workforce Relations Division (OS:HC:R) will be telephonically alerted by the servicing Labor/Employee Relations specialist.

    3. The servicing Labor/Employee Relations specialist will prepare a written request for an extension of the advance notice period to the Director, Workforce Relations Division, (OS:HC:R), that contains a chronology of events that have occurred in the subject case since issuance of the proposal letter; a request for an extension of the notice period for a specific amount of time; and a rationale for such a request.

    4. The Director, Workforce Relations Division, will submit the request to OPM.

    5. The HCO Workforce Relations Division will be telephonically notified of OPM’s decision. A written confirmation will be sent to the servicing Labor/Employee Relations specialist and the embedded Human Resources staff, if applicable.

Exhibit 6.432.1-1  (01-06-2009)
Suggested Language for Employee Request for Material Relied on and for Representative Request for Access to Tax Information

"Request by Employee for Material Relied On"
"Please make available to me a copy of the material relied on to support the letter of _______________. I understand that tax returns and return information included in the material may not be disclosed to my representative or to anyone else (other than a Treasury Department employee in connection with that employee’s official duties with respect to this matter) without proper approval."
"Request by Representatives for Access to Tax Information"
"This is a request for access to coded tax information contained in the letter dated __________ to__________ and a request for access to the tax information contained in tax cases or other documents supporting the letter. The information is being disclosed to me for use in my representation of__________ in connection with this action and any proceeding that may arise from it.
I understand that Internal Revenue Code 7431 permits a taxpayer to bring a civil action against a person who knowingly or negligently discloses tax information in violation of Internal Revenue Code 6103. I further understand that the tax information may not be used in any public proceeding or disclosed to any person, other than a Treasury Department employee in connection with that employee’s official duties with respect to this matter, unless the particular use or proposed disclosure is approved by the Service upon my separate written request. Upon such a request, the Service will ordinarily provide authorization to disclose relevant sanitized tax information, as appropriate. This separate written request is not necessary if I disclose to a third party or at a public proceeding only the information that has already been disclosed by the Service to that third party, provided that the extent of such disclosure is limited to the form and extent of the Service’s disclosure. For example, the evidence file submitted by the Service to the Merit Systems Protection Board in response to an employee’s appeal may be used at the hearing without prior request by the employee or his/her representative."

Exhibit 6.432.1-2  (01-06-2009)
Comparison of 5 CFR Part 432 vs. Part 752

The table below compares the regulations to further clarify the differences between each authority.

  Part 432 Part 752
Type of Actions Actions: Demotion or Removal Actions: Suspension, Demotion, or Removal
Actions Taken For Actions taken for"unacceptable performance." Actions taken for"such cause as will promote the efficiency of the service"
Proof Actions must be proven by"substantial evidence" (lower standard than Part 752). Actions must be proven by a"preponderance of the evidence" (higher standard than Part 432).
Actions Based On Actions can only be based on an employee's formal, established, communicated standards. Actions can be based on expectations or established/formal standards
Opportunity Period Employee is entitled to an opportunity period. No requirement for an opportunity period.
Time Limits Time limited to performance"deficiencies" occurring within the 1 year prior to the proposal notice. No time limit for inclusion of"incident/charges" in Part 752.
Immediacy of Action Employee remains on the job throughout the opportunity period. Can take immediate action because no requirement for an opportunity period exists.
Mitigation Action may notbe mitigated (action will either be sustained or reversed). Action may be mitigated (penalty reduced).

As you can see, there are distinct differences between these regulations. For example, Part 432 requires that you give the employee an opportunity to bring his or her performance up to an acceptable level, while Part 752 does not require such an opportunity period. With this difference in mind, you may question the reasoning behind providing an opportunity period if it is not required. Keep in mind that third parties (for example, arbitrators, judges) place a strong emphasis on a manager's effort to communicate what is expected to the employee as well as the manager's effort to assist the employee in improving his or her performance. An opportunity period addresses both of these concerns. While an opportunity period may not be required under Part 752, providing such an opportunity may assist the agency in developing a stronger case before a third party.

Another difference between the regulations is that Part 432 requires the use of established performance elements and standards. Under Part 752, employees can be held to ad hoc standards such as explicit instructions or work assignments or professional standards established for certain occupations such as physicians. In some cases, it may be more appropriate to hold employees to these ad hoc standards, as long as they are no more stringent than the established performance standards.

Exhibit 6.432.1-3  (01-06-2009)
Action Guide for Managers -- Removing or Reducing in Grade an Employee for Unacceptable Performance

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Exhibit 6.432.1-4  (01-06-2009)
Suggested Letter to Inform Employee of Opportunity to Improve (Unmeasured)

For employees on critical job elements state:
This letter confirms our discussion of _______________, during which I informed you that your performance has been unacceptable for certain critical elements (or the Retention Standard) of your position. The critical elements and the performance standards for each element (or Retention Standard) that we discussed and examples of your unacceptable performance are as follows:
CRITICAL ELEMENT: (Title of Critical Element or Retention Standard)
  Performance Standard: (State all aspects of the critical element)
    You are failing to meet aspects, _______________________.
For managers and management officials state:
This letter confirms our discussion on ______, during which I informed you that your performance has been unacceptable for certain performance expectations of your position. The critical performance expectation that we discussed and examples of your unacceptable performance are as follows:
CRITICAL PERFORMANCE EXPECTATION: (Title of performance expectation, i.e., Responsibility, Commitment, or Retention Standard)
You are failing to meet __________.
EXAMPLE 1: State instances of unacceptable performance. Examples should be concise, direct, and easy to understand, with enough specificity so that the employee has sufficient information to know what the performance deficiencies are. As applicable, this could include information on what the employee did (or did not do) with reference to specific dates, places, cases, etc., and what the employee should have done. Examples should not be broad, vague, or imprecise. As appropriate, examples should include reference to required procedures, counseling or instruction given previously concerning the matter, and any harm caused by or resulting from the deficiency. The examples should also identify which aspect(s) were not met. Some suggestions for the way examples may be written can be found in 6.432.1.13(e). Include advice or guidance as to what must be done to bring the performance up to an acceptable level. This could include such things as how time would be best spent (prioritizing and planning), suggested sources of assistance or information, ways or techniques of performing work, formal or informal training planned, etc. In conjunction with the performance standards and counseling sessions or memoranda, this paragraph should make clear exactly what is expected of the employee. Describe what assistance and support management will provide for the employee. This could include any specific work reviews and/or counseling sessions planned, or other active assistance/training planned on work techniques, time management, or technical issues.
EXAMPLE 2: [Include enough examples to clearly illustrate the unacceptable performance.]
If tax return information is used in examples, state: Because you are restricted from making disclosure of tax information without proper approval, the tax cases covered in this letter are identified in an attachment to this letter. You are subject to the provisions of Internal Revenue Code 7213 and 7431 in the event of an unlawful disclosure of tax information.
For employees on critical job elements state: To attain a fully successful level of performance, you must meet all of the performance aspects listed in each Critical Element above. To attain a minimally successful level (the minimum standard for retention in your position), you may fail no more than one performance aspect in each Critical Element above. Your failure to improve to at least a minimally successful level will result either in a reassignment to another position or in a proposal to remove you from the Service or reduce you in grade/payband.
For managers and management officials state: To attain a minimally successful level of performance (the minimum standard for retention in your position), you must meet all of the performance standards listed in each Critical Performance Expectation above. Your failure to improve to at least a minimally successful level will result in either a reassignment to another position or a proposal to remove you from the Service or reduce you in grade/payband.
If you wish the agency to consider any medical condition that you believe has contributed to your performance problem, please contact _________. You will be provided information concerning medical documentation requirements.
Beginning on the date you receive this letter, you will be given__________ calendar days (never less than sixty (60) days) during which you will have the opportunity to demonstrate that you can perform at least at a minimally successful level with respect to the above critical elements and performance standards (or critical performance expectations). I will be monitoring your performance closely during the period and, at the end of the period I will evaluate your work and make a determination whether your performance during the period has reached the level required for retention in your position. You will be informed soon thereafter of whatever further action is to be taken.
If you have any questions on this matter, feel free to contact me. I am available to answer your questions and to assist you in improving your performance during this period.
      Sincerely,
NOTE: A copy of this letter will be given to the bargaining unit employee with the notification at the top of the first page: THIS COPY MAY AT YOUR OPTION BE FURNISHED TO NTEU CHAPTER _________.

Exhibit 6.432.1-5  (01-06-2009)
Suggested Letter to Inform Employee of Opportunity to Improve (Measured)

This memorandum confirms our discussion of __________, during which I informed you that your performance has been unacceptable for certain critical job elements of your position. The critical job elements and the performance standards for each element that were discussed and examples of our unacceptable performance follow:

CRITICAL ELEMENT (Title of Critical Element)

Performance Standard (State all aspects of the critical element)

You are failing to perform aspect(s) ______, in an acceptable manner.

Example:

Week Ending Function/ Program Your Business Results
/Efficiency Rate
Minimum Acceptable Rate Your Business Results/Quality Rate Minimum Acceptable Rate

(This information may be attached to the Opportunity Letter rather than included in the body of the letter)

(If additional critical elements are unacceptable, follow the same format as above.)

I will be available to give assistance and guidance, which will include regular discussions of your performance. Also, I make the following suggestions to help improve your performance.

Advice and Guidance:(Include advice or guidance as to what must be done to bring the performance up to an acceptable level. This could include such things as how time would be best spent (prioritizing and planning), suggested sources of assistance or information, ways or techniques of performing work, formal or informal training, OJT coach assistance, etc.)

Describe what managerial assistance and support management will provide for the employee. This could include any specific work reviews and/or counseling sessions planned, or other active assistance/training planned on work techniques, time management, or technical issues.)

If Tax Return Info is Used in Example, state:Because you are restricted from making disclosure of tax information without proper approval, the tax cases covered in this letter are identified in an attachment to this letter. You are subject to the provisions of Internal Revenue Code 7213 and 7431 in the event of an unlawful disclosure of tax information.

To attain a fully successful level of performance, you must meet all of the performance aspects listed in each Critical Element above. To attain a minimally successful level (the minimum standard for retention in your position), you may fail no more than one performance aspect in each Critical Element above. Your failure to improve to at least a minimally successful level will result in either a reassignment to another position or in a proposal to reduce you in grade or remove you from the Service.

Beginning on the date you receive this letter, you will be given at least 60 calendar days during which you will have the opportunity to demonstrate that you can perform at least at the minimally successful level with respect to the above critical elements and performance standards. To attain a minimally successful level of performance (the minimum standard for retention in your position), you must meet the overall standard considering all aspects of each critical element.

I will be monitoring your performance closely during the period and, at the end of the period, I will evaluate your work and make a determination whether your performance has reached the level required for the retention in your position. You will be informed of whatever further action is to be taken.

If you wish the agency to consider any medical condition that you believe has contributed to your performance problem, please contact ________________. You will be provided information concerning medical documentation requirements.

If you have any questions on this matter, feel free to contact me. I am available to answer your questions and to assist you in improving your performance during this period.

    Sincerely,

Note:

A copy of this letter will be given to the bargaining unit employee with the notification at the top of the first page: "THIS COPY MAY AT YOUR OPTION BE FURNISHED TO NTEU CHAPTER_________. "

Exhibit 6.432.1-6  (01-06-2009)
Suggested Letter Informing Employee of Improved Performance — Performance Is At or Above the Minimum Retention Level

For employees on critical job elements state:
In a conversation on __________, confirmed in a letter dated ________, I informed you that your performance was unacceptable in the following critical element(s):
CRITICAL ELEMENT: (title of Critical Element)  
  CRITICAL ELEMENT: (Follow the same format for each critical element referred to in the Opportunity Letter.)
For managers and management officials state:
In a conversation on _________, confirmed in a letter dated _________, I informed you that your performance was unacceptable in the following Critical Performance Expectation(s):
  CRITICAL PERFORMANCE EXPECTATION: (Title of performance expectation, i.e., Responsibility, Commitment, or Retention Standard) You are failing to meet ___________________.

You were also informed that you would be given an opportunity to demonstrate improved performance with respect to the above-specified critical elements (or Critical Performance Expectations) and that I would be evaluating your performance during that period. Based on my evaluation of your performance in those critical elements (or Critical Performance Expectations), I am pleased to inform you that your performance has reached the level required for retention in your position. Accordingly, no further action will be taken at this time to remove you or to reduce you in grade/payband for your unacceptable performance. Your performance, of course, must continue to be acceptable. In accordance with Office of Personnel Management Regulations, if your performance again becomes unacceptable before (calendar date that is one year after the date on which the initial opportunity period began), I may recommend your removal or reduction in grade/payband without affording you an additional opportunity to improve your performance. I therefore, encourage you to continue your efforts.

(If performance is minimally successful state:) At the present time your performance, while not unacceptable, is only minimally successful. I will continue to provide you with assistance aimed at improving your performance to a fully successful level. Failure to improve your performance to that level will result in the future denial of any within grade increase (or performance based increase) due you. Continuing performance at the minimally successful level could result in a reassignment or other personnel action.

Please let me know if you have any questions concerning this matter.

    Sincerely,

Exhibit 6.432.1-7  (01-06-2009)
Suggested Notice of Proposed Action Based on Unacceptable Performance

In a conversation on __________, confirmed in a letter dated __________, you were informed by your manager that your performance had become unacceptable in the critical elements (or critical Performance expectations) stated below. You were also informed that you would be given an opportunity to improve your performance on those critical elements (or critical performance expectations) to at least a minimally successful level. You have failed to perform at the minimum level required for retention in your position, as demonstrated by the instances of unacceptable performance cited below which occurred during and prior to that period.
Therefore, this is a notice of proposed action issued in accordance with Part 432 of the Code of Federal Regulations. I propose to remove you from the Internal Revenue Service (or: reduce you in grade (or payband) from__________ to __________, at any time after thirty (30) calendar days from the date you receive this letter.
This proposed action is based on the following: For employees on critical job elements state:
REASON 1: Unacceptable performance in Critical Element (Title of Critical Element)
  Performance Standard (State all aspects of the critical element)
  You have failed to meet aspects: _______________________, _______________________(as previously detailed)
For managers and management officials state:
REASON 1: Unacceptable Performance in Critical Performance Expectation (Title of performance expectation, i.e.; Responsibility, Commitment, or Retention Standard)
  You have failed _____________________.
SPECIFICATION 1: [Specifications should be concise, direct and easy to understand, with enough detail so that the employee has sufficient information to know what the performance deficiencies are. As applicable, this could include information on what the employee did (or did not do) with reference to specific dates, places, cases, etc., and what the employee should have done. Specifications should not be broad, vague or imprecise. Specifications should include reference to the required procedures, counseling, or instruction given previously concerning the matter, and any harm caused by or resulting from the deficiency. Specifications should identify which aspect(s) are related. Specifications may involve unacceptable performance at any time during the previous one (1) year period; however, the content of the letter should be weighted toward unacceptable performance during the opportunity period. Information prior to the one (1) year cut-off should be included in connection with performance during the one (1) year period if needed for clarity and should be clearly designated as background or introductory; such information is not part of the basis for the action. Some examples of the way specifications may be written can be found in 6.432.1.13(1)e.]
SPECIFICATION 2: (Include enough specifications to clearly establish that the employee is failing the critical element (or critical performance expectation.))
(Follow the same format if additional critical elements (or critical performance expectations) are being performed unacceptably)
You have a right to the material relied on to support the reasons in this notice and may request it from _________________________.
[If tax return information is used in examples or in the material relied on, state:] Because you are restricted from making disclosure of tax information without proper approval, the tax cases covered in this letter are identified in an attachment to this letter. Tax information in this letter and the attachment, as well as the material relied upon to support the action may be used solely in connection with this action and related proceedings. A written request must be made if you wish to disclose the tax information to any person other than a Treasury employee in connection with that employee’s official duties with respect to this matter. You are subject to the provisions of Internal Revenue Code 7213 and 7431 in the event of an unlawful disclosure of tax information. If you designate a representative or representatives and you wish to disclose the tax information to that person or persons, each representative must sign and deliver the letter that is attached.
A letter is also attached which you may use to request a copy of the material relied on in this matter.
[NOTE: See Exhibit 6.432.1-1 for the form letters.]
You have the right to answer both personally and in writing and to furnish affidavits and evidence in support of your answer. Your written and/or oral reply must be received by me within fifteen (15) calendar days from your receipt of this letter. You also have the right to be represented by an attorney or other representative. Any written reply or request for an oral reply should be addressed to___________. Should you desire an oral reply, you must request it within seven (7) calendar days from your receipt of this letter. If otherwise in an active duty status, you have a right to a reasonable amount of official time to review the material relied on in this matter, to secure affidavits, and to prepare an answer. For these purposes, you will be allowed __________ hours of official time. In addition, you will be allowed official time to make an oral reply if you choose to do so. You should arrange with your manager for any use of official time.
If you wish the agency to consider any medical condition that you believe has contributed to your performance problem, please contact ______________________. You will be provided with information concerning medical documentation requirements. [NOTE: See Exhibit 6.432.1-8 for sample letter.] You may also contact _______________________________ for further explanation if you do not fully understand the reasons for this proposed action.
A final decision will not be made in this matter until the expiration of the thirty (30) day advance notice period. Any replies submitted by you will be given full consideration. You will be notified in writing of the final decision. You will be retained in a work status during the advance notice period (add, if appropriate: unless workload requirements necessitate placing you in a non-duty status. For those in non-work status, state: You will remain in a non-duty status during the advance notice period unless workload requirements necessitate recalling you to duty.)
    Sincerely,
NOTE: For bargaining unit employees, a copy of this notice will be provided simultaneously to NTEU.

Exhibit 6.432.1-8  (01-06-2009)
Suggested Letter to be Issued When a Medical Condition is Raised

This is in relation to your request that I consider a medical condition that you indicate may have contributed to the cause of your unacceptable performance as detailed in the document [proposed action under 5 CFR 432 or opportunity letter] I issued to you on __________. To enable me to properly evaluate your condition and its impact on your performance, it is essential that you provide the following medical documentation:
  [List information required, including any necessary elements contained in the definition of "Medical Documentation" in 5 CFR 339.102.]
Please supply this documentation to my by ____________. It will be reviewed in coordination with a Federal Occupational Health physician to ensure that the diagnosis or clinical impression is justified in accordance with established diagnostic criteria, and that the conclusions and recommendations are not inconsistent with generally accepted medical principles and practices.
[Add the following if the employee meets the service requirements for disability retirement:] You should also be aware of the fact that if you are unable (because of disease or injury) to render useful and efficient service in a position at your current grade or pay, you may be eligible for a disability retirement. To apply for a disability retirement, you must file an application form with the Office of Personnel Management through this office. _______________ can provide you with additional information and supply you with the appropriate forms. Please note, however, that an application for disability retirement will not preclude or delay the processing of the [state the action being considered].

Exhibit 6.432.1-9  (01-06-2009)
Suggested Decision Notice in Action Based on Unacceptable Performance

In a letter dated ___________, it was proposed to remove you from the Internal Revenue Service [or: reduce you in grade/band from __________ to ____________] for the reasons contained therein.
I have carefully considered [include, as applicable, replies and their dates, including any medical documentation provided.] [For the bargaining unit employee, add:] I have also considered your performance during the advance notice period.
[If the bargaining unit employee raised an issue of discrimination at the oral/written reply stage, the deciding official must state a legitimate nondiscriminatory management reason for the action, such as:] In your reply, you allege that this action is being taken against you because of your _____________. Having considered your replies (insert if appropriate: and the evidence you have submitted,) I am persuaded that there are no discriminatory motives for the action. The sole reason for the action is that your performance is unacceptable.
[If the employee has raised any factual disputes, the deciding official must state why each was rejected. Factual disputes arise when the employee presents evidence or assertions of facts that appear to conflict with the facts as presented by management. They do not include arguments, such as whether or not performance standards were objective, whether or not the opportunity period was long enough, or whether other work demands precluded successful performance. It is sufficient to state which facts are found more credible. If numerous factual disputes are raised, it may be clearer to discuss the disputes in the chart format below, beside the decisions listed for the individual specifications.]
My decision regarding the reasons stated in the letter of ____________is as follows:
REASON 1 — Sustained
  Specification 1 — Sustained
  Specification 2 — Not Sustained
  Specification 3 — Sustained
REASON 2 — Sustained
  All Specifications Sustained

Note:

[If all reasons and specifications are sustained, a statement to that effect will suffice.

]
The sustained unacceptable performance cited above warrants your removal [or: reduction in grade/payband]. It is my decision to remove you from the Internal Revenue Service [or reduce you in grade/payband] effective______________. [If the proposed action is being mitigated from a removal to a reduction in grade/payband state: Although I have concluded that you are performing in an unacceptable manner in your position, I have decided to reduce you in grade/payband from_______________ to___________ effective __________________, rather than remove you from the Service.]
You have the right to appeal the procedures and merits of this action to the Merit Systems Protection Board, [address] ____________________, under Title 5, Code of Federal Regulations (CFR), Part 432.
A copy of the Merit Systems Protection Board regulations is enclosed with this letter. [NOTE: MSPB REGULATIONS ONLY REQUIRE THAT THE AGENCY "PROVIDE A COPY OR ACCESS TO A COPY" OF THE REGULATIONS; IF THE REGULATIONS ARE NOT ATTACHED, MODIFY THE SENTENCE ACCORDINGLY TO INDICATE WHERE ACCESS TO A COPY CAN BE OBTAINED. IF YOU ARE PROVIDING THE ABBREVIATED REGULATIONS, INCLUDE LANGUAGE SUCH AS "A portion of the Merit Systems Protection Board (MSPB) regulations related to the filing of appeals is enclosed with this letter. Additional information regarding MSPB regulations and procedures is available on the MSPB web site at www.mspb.gov.]" Section 1201.24(a) of the regulations tells you what information must be included in your written appeal to the Board. Also enclosed is a copy of the MSPB Appeal Form 185, although it is not required that you file your appeal using the form. However, since completion of the form would constitute compliance with the requirements of Section 1201.24(a), you are encouraged to use the form. To be timely, an appeal to the Board must be filed no later than thirty (30) days after the effective date, if any, of the action being appealed, thirty (30) days after the date of receipt of the agency's decision, whichever is later. Where an appellant and an agency mutually agree, in writing, to attempt to resolve their dispute through an Alternative Dispute Resolution (ADR) process prior to the timely filing of an appeal; the time limit for filing the appeal is extended by an additional thirty (30) days -- for a total of sixty (60) days. Filing can be by personal delivery or by facsimile during normal business hours to the Board field office indicated above, in which case the date of receipt in the Board's office is the date of filing, or filing can be by mail to that office, in which case the date of mailing (postmark date) is the date of filing. If you do not submit an appeal within the time set by Board regulations, the appeal will be dismissed as untimely filed unless a good reason for the delay is shown.
By regulations published October 20, 2003, the Merit Systems Protection Board announced the ability to file appeals by electronic mail or Internet. Details of this option are available at: http://e-appeal.mspb.gov . This option does not otherwise change any time limits or other requirements or procedures detailed above.
Should you allege that the action taken against you was based in whole or in part on discrimination because of race, color, religion, sex, age, national origin, or physical or mental handicap, you have the following option available to you. You may appeal the discrimination allegation to the Merit Systems Protection Board, or you may appeal the discrimination along with any other issue you would have otherwise appealed to the Board through the IRS discrimination complaint system under Part 1614 of Title 29, Code of Federal Regulations. To appeal under Part 1614, the allegation must be brought to the attention of an EEO counselor within forty-five (45) calendar days of the effective date of this action. A description of subsequent appeal rights available under a Part 1614 appeal may be found in Subpart E of the enclosed Merit Systems Protection Board regulations. [NOTE: IF YOU ARE NOT ENCLOSING THE REGULATIONS IN THEIR ENTIRETY, CHANGE THIS LANGUAGE ACCORDINGLY.] You may not initially file both an appeal to the MSPB and a complaint under Part 1614 on the same matter. Whichever is filed first shall be considered an election to proceed in that forum.
Information about appeal rights and procedures may be obtained from [NAME] (Labor/Employee Relations Specialist) at (phone number) and/or your Equal Employment Opportunity Counselor.
[FOR BARGAINING UNIT EMPLOYEES ADD]:
As an alternative to an appeal to the Merit Systems Protection Board, you may appeal this decision, with the consent of the Union, to binding arbitration in accordance with the National Agreement between IRS and the National Treasury Employees Union. Under no condition may you appeal this action to both the Board and arbitration. (The filing of an appeal in both forums will result in the dismissal of whichever appeal is filed later.) An allegation of illegal discrimination may be raised in connection with the appeal to arbitration if the specific nature of the discrimination (e.g., race, religion) and the facts upon which the allegation is based were presented in writing no later than the submission of the notice of invoking arbitration, and if you have not filed an EEO Complaint concerning this decision. Should you raise an issue of illegal discrimination and should you not prevail at arbitration, you have the right to request the Board to review the arbitrator's decision under 5 USC 7702. The request for Board review must be filed with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419, within thirty-five (35) days of the issuance of a decision, or if it can be shown that a decision was received more than five (5) days after the date of issuance, within thirty (30) days after the date the decision was received. Within thirty (30) days of receiving the Board's final decision, you have the right to petition the Equal Employment Opportunity Commission to consider the Board's decision, or to file a civil action in an appropriate United States District Court. An appeal of the arbitrator's decision only with respect to those matters not involving allegations of discrimination may be filed with the U.S. Court of Appeals for the Federal Circuit. [A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 USC 7121 and 7702.]
[For a removal or demotion of more than two grades below that of the employee's current position, if the employee has worked at least one of the previous two years under a position covered by the retirement system and if the employee has twenty-five (25) years of creditable service including at least five years of civilian service or if the employee is at least fifty (50) years of age with twenty (20) years of creditable service, including five (5) years of civilian service add:] Additionally, you may be eligible for a discontinued service retirement should you resign prior to the effective date of this action or after your removal. The circumstances of your separation are what makes you eligible for discontinued service retirement. A copy of OPM Form 1510, Certification of Agency Offer of Position and Required Documentation, is attached for these purposes. For additional information on this type of retirement, contact a Retirement Specialist by calling the Employee Resource Center (ERC) at 1-866-743-5748 or TTY at 1-866-924-3578.
[IF THE EMPLOYEE MEETS THE SERVICE REQUIREMENTS FOR DISABILITY RETIREMENT AND THERE ARE INDICATIONS THAT A MEDICAL CONDITION MAY BE THE CAUSE OF THE REASONS FOR THE ACTION, ADD:] If you believe that a medical condition is the cause of the reasons for this action, you may file an application for a disability retirement. For additional information please contact a Retirement Specialist by calling the Employee Resource Center (ERC) at 1-866-743-5748 or TTY at 1-866-924-3578.
A Standard Form 50 effecting your_____________ is enclosed [or: "will be forthcoming" .]
    Sincerely,
Enclosures
OPM Form 1510
[MSPB Regulations]
[MSPB Appeal Form]
NOTE: For bargaining unit employees, "A sanitized copy of this letter will be provided to NTEU."

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