Adverse Conduct and Performance-Based Actions Course

Module 1: The Legal Framework

• Place adverse and performance actions within constitutional due process and appointment authority.
• Identify governing statutes (5 U.S.C. Chs. 75, 43, 77, 71, merit principles, Hatch Act, USERRA, VEOA, whistleblower).
• Apply key regulations (5 C.F.R. Parts 752, 430, 432, 1200-series, 315, 731/735) and agency policies.
• Use MSPB and court decisions to interpret requirements and standards.

Module 2: Adverse Action Jurisdiction

• Differentiate actions covered (reprimands, suspensions, removals, demotions, furloughs) from exclusions.
• Determine employee coverage under Subchapter I (≤14-day suspensions) and Subchapter II.
• Resolve jurisdictional issues: probationary removals, appointments/promotions, voluntariness, reassignment demotions, withdrawal of resignation.
• Apply practical tips to avoid back-pay exposure when in doubt.

Module 3: Adverse Action Causes

• Explain the “efficiency of the service” cause standard rooted in the Lloyd–LaFollette Act.
• Relate causes to rules, ethics, and tables of penalties without over-relying on labels.
• Analyze common causes: medical fitness, off-duty conduct, indefinite suspension, erroneous personnel actions, clearance/license failures, protected vs. non-protected activity.
• Frame charges that link facts to mission impact.

Module 4: Deciding the Penalty

• Treat penalty as a separate determination after proving the charge.
• Apply Douglas factors and other relevant considerations to ensure consistency and fairness.
• Document rationale and alignment with any table of penalties.

Module 5: Issues of Proof

• Meet management’s burden with physical, documentary, and testimonial evidence.
• Use the correct standards of proof (preponderance, substantial, clear and convincing, beyond reasonable doubt—when applicable).
• Conduct pre-action inquiries and formal investigations that withstand review.

Module 6: Adverse Action Procedures

• Follow the basic scheme: notice, reply, decision—tailored to Subpart I vs. Subpart II.
• Draft proposal letters (charges, relied-upon materials, penalty factors) and manage duty status.
• Hear and document replies; issue defensible decision letters and appeal rights.
• Avoid harmful procedural error and meet other procedural requirements.

Module 7: Performance-Based Actions

• Operate under Chapter 43 with OPM-approved systems and written standards.
• Plan and administer PIPs: when to issue, components, monitoring and documentation.
• Process proposals, replies, and decisions; understand coverage and evidentiary standards.
• Choose appropriately between Chapters 75 and 43 and know added requirements under 75.

Module 8: Appeals and Grievances

• Navigate MSPB appeals (burdens, mixed cases) and negotiated grievance procedures.
• Address discrimination complaints and common defenses (e.g., disparate treatment).
• Use settlement effectively to manage risk and resolve disputes.