Personnel Delegation HHS Instruction 572.1

HHS INSTRUCTION 752-l

Personnel Manual

HHS Transmittal 85.28 (7/19/85)

Subject:  ADVERSE ACTIONS

752-l-00 Purpose and Coverage

10 References
20 Using Performance Appraisals as a Basis for Reductions in Grade and Removals
30 Deciding Official
40 Disallowance of Representative
50 Proposal and Decision Letters
60 Adverse Action File
70 Predecision Hearings
80 Discrimination or Other Prohibited Personnel Practice
90 Statement of Discrimination Complaint Rights in Decisions
100 Statement of Appeal Rights and Availability of Records
110 Forwarding.Appellate Decisions to the Department
120 Chart of Employee Coverage, Appeal, and Grievance Rights

Exhibit 752-l-A Delegation of Authority

752-l-00 PURPOSE AND COVERAGE

This Instruction states the Department's supplement to Part 752, Subparts A through D, of Office of Personnel Management (OPM) Regulations (5 C.F.R. Part 752) which are incorporated herein by reference.  This Instruction covers all HHS employees except those in the Senior Executive Service (SES), the Public Health Service Commissioned Corps, administrative law judges, and others who are excluded by OPM Regulations 5 C.F.R. 752.201(d) and 5 C.F.R. 752.401(c).  This Instruction covers removals, suspensions, reductions in grade,reductions in pay, and furloughs of 30 days or less, as provided in 5 C.F.R. Part 752.  This Instruction does not state such additional requirements as may be provided by labor-management agreements.

752- l -10 REFERENCES

1. 5 U.S.C. 2302 (law--prohibited personnel practices)
2. 5 U.S.C. 7501 through 7513 (law--adverse actions)
3. 5 C.F.R. Part 432 (regulations-actions based on unacceptable performance)
4. 5 C.F.R. 752.101 through 752.406 (regulations--adverse actions)
5. 5 C.F.R. Part 1201 (regulations--appeals to the Merit Systems Protection Board)
6. 29 C.F.R. Part 1613 (regulations--discrimination complaints)
7. FPM Chapter 752 (adverse actions)
8. Douglas v. Veteran's Administration (MSPB decision--miti gating and aggravating factors in determining penalties)
9. Johnson v. HHS and Merritt v. Justice (MSPB decisions--nexus: off-duty conduct and the efficiency of the service)
10. Lovshin v. Navy (performance actions under 5 U.S.C. Chapter 75)
11. HHS Instruction 293-l/1613-2 (records disposal)
12. HHS Instruction 293-2 (personnel files)
13. HHS Instruction 430-2 (performance management for merit pay employees and members of the SES)
14. HHS Instruction 430-4 (performance management)
15. HHS Instruction 432-l (reduction in grade and removal based) on unacceptable performance)
16. HHS Instruction 751-2 (admonishments)
17. HHS Instruction 772-l (procedural, appellate, and grievance coverage)
18. HHS Instruction 792-2 (employee counseling services)
19. HHS Instruction 1613-3 (discrimination complaints)
20. HHS Circular 772-l (forwarding appellate decisions)

752- l -20 USING PERFORMANCE APPRAISALS AS A BASIS FOR REDUCTIONS IN GRADE AND REMOVALS

Performance appraisals may be used as a basis for reduction-in grade and removal actions under this Instruction when the case involves both issues of performance and issues other than performance (e.g., misconduct).  In Lovshin v. Navy (USCA Fed. Cir., Appeal No. 84-1002, June 21, 1985), the Appeals Court ruled that actions based solely on performance issues may be taken under either 5 U.S.C. Chapter 43 (see HHS Instruction 432-l) or 5 U.S.C. Chapter 75 (i.e., under this Instruction).

752- l -30 DECIDING OFFICIAL

For any adverse action taken under this Instruction, the deciding official must be a different and higher level official than the proposing official, except in the case of furloughs or any action for which 30 days advance written notice is not required under OPM Regulation 5 C.F.R. 752.404(d).  (See Exhibit 752-l-A for delegation memorandum.)

752- l -40 DISALLOWANCE OF REPRESENTATIVE

The deciding official is authorized to disallow an employee's representative under OPM Regulations 5 C.F.R. 752.203(d) and 752.404(e).  (See Exhibit 752-l-A for delegation memorandum;)

752- l -50 PROPOSAL AND DECISION LETTERS

1. Proposing and deciding officials must assure that proposals of and decisions on adverse actions under this Instruction are reviewed before issuance by the appropriate servicing personnel officer or his or her designee for technical and other requirements.
2. Sample letters for proposal and decision regarding a removal and a suspension of 14 calendar days or less are shown in Exhibit 752-l-B and Exhibit 752-l-C, respectively. These samples are for use in preparing letters for nonbargaining unit employees. When preparing a proposal or decision letter to a bargaining unit employee, proposing and deciding officials should confer with the servicing labor relations officer regarding statutory and contractual obligations that may affect the content of the letter. letters,The sample rights,together with the supplemental explanation of are samples only. Their use is not mandatory, and they may be modified to accommodate the circumstances of the particular case, local needs, or preferences.

752- l- 60 ADVERSE ACTION FILE

At the time of the notice of proposed action, the adverse action file will be established (see FPM Chapter 752, subchapter 3-3.1).  As the processing of the action continues, copies of all relevant material will be added to the file.  When the adverse action is completed, the file will be retained by the servicing personnel office.  (See HHS Instructions 293-l/1613-2 and 293-2 for maintenance and disposal.)

752- l -70 PREDECISION HEARINGS

There is no requirement for a predecision hearing in 5 C.F.R. Part 752, and it is the policy of this Department not to conduct a predecision hearing.

752- l -80 DISCRIMINATION OR OTHER PROHIBITED PERSONNEL PRACTICE

When the employee alleges that a proposed Part 752 action is based on discrimination or other personnel practice prohibited by 5 U.S.C. 2302, the deciding official shall consider the allegation and any substantiating proof submitted by the employee and then proceed to decision.  (This section applies only to proposed Part 752,actions.  For information on discrimination allegations regarding Part 752 decisions,see section 752-l-90 below.)

752- l -90 STATEMENT OF DISCRIMINATION COMPLAINT RIGHTS IN

DECISIONS

Decisions issued under this Instruction shall state the employee's right to allege discrimination, particular case,as may be applicable in the either (1) in a discrimination complaint within the Department under the provisions of HHS Personnel Instruction 1613-3 or (2) in a grievance under the provisions of a labor management agreement, if appropriate, or (3) in an appeal to the MSPB; as provided in MSPB Regulations 5 C.F.R Part 1201, Subpart D.  For adverse actions effected under OPM Regulation 5 C.F.R. 752, Subparts C and D, explanation that,the statement should include an explanation that, when either procedure (1) or (2) above is used to allege discrimination, the employee retains the right to appeal to the MSPB later as provided in MSPB Regulation 5 C.F.R. 1201.154 (sample statements of discrimination complaint rights for non bargaining.unit employees are contained in Exhibits 752-l-B and 752-1-C).

752- l -100 STATEMENT OF APPEAL RIGHTS AND AVAILABILITY OF RECORDS

1. A decision on an action effected under OPM Regulations 5 C.F.R. Part 752, Subparts C and D, which is appealable to the MSPB must, at a minimum, provide the information required by MSPB Regulation 5 C.F.R. 1201.21, "Notice of.appeal rights," and should contain the following or similar statement:

   Your appeal to the MSPB.should inform the MSPB that the records of your case may be obtained by writing to:

   (give complete name and mailing address of the person who will provide the records and other information requested by the MSPB).

   This information will assist the MSPB in processing your appeal.

2. Adverse actions under OPM Regulations 5 C.F.R. Part 752, Subparts A and B, (i.e., suspensions of 14 calendar days or less) are not appealable to the MSPB, whether or not discrimination is alleged.  These suspensions can be appealed under the Department's grievance procedure in HHS Personnel Instruction 771-3 or under the provisions of a labor management agreement, as appropriate.