FEDERAL 

WORKFORCE

Improved Supervision 

and Better Use of 

Probationary Periods 

Are Needed to 

Address Substandard 

Employee 

Performance

Report to the Chairman, Committee on 

Homeland Security and Governmental 

Affairs, U.S. Senate

February 2015

GAO-15-191

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-15-191, a report to the 

Chairman, Committee on Homeland Security 

and Governmental Affairs, U.S. Senate

February 2015

FEDERAL WORKFORCE

Improved Supervision and Better Use of Probationary 

Periods Are Needed to Address Substandard 

Employee Performance

Why GAO Did This Study

Federal agencies’ ability to address 

poor performance has been a longstanding issue. Employees and agency 

leaders share a perception that more 

needs to be done to address poor 

performance, as even a small number 

of poor performers can affect agencies’ 

capacity to meet their missions. 

GAO was asked to examine the rules 

and trends relating to the review and 

dismissal of federal employees for poor 

performance. This report (1) describes 

and compares avenues for addressing 

poor performance, (2) describes issues 

that can affect an agency’s response to 

poor performance, (3) determines 

trends in how agencies have resolved 

cases of poor performance since 2004, 

and (4) assesses the extent to which 

OPM provides guidance that agencies 

need to address poor performance. To 

address these objectives, GAO 

reviewed OPM data, and interviewed, 

among others, OPM and MSPB 

officials, selected CHCOs, and 

selected union officials.

What GAO Recommends

GAO is making four recommendations 

to OPM to strengthen agencies’ ability 

to deal with poor performers including 

working with stakeholders to assess 

the leadership training agencies 

provide to supervisors. OPM concurred 

or partially concurred with all but one 

recommendation noting that GAO’s 

recommendation to explore using an 

automated process to notify 

supervisors when a probationary 

period is about to end is an agency 

responsibility. GAO agrees and has 

clarified the recommendation.

What GAO Found

Federal agencies have three avenues to address employees’ poor performance: 

1. Day-to-day performance management activities (such as providing regular 

performance feedback to employees) can produce more desirable outcomes 

for agencies and employees than dismissal options. However, supervisors do 

not always have effective skills, such as the ability to identify, communicate, 

and help address employee performance issues.

2. Probationary periods for new employees provide supervisors with an 

opportunity to evaluate an individual’s performance to determine if an 

appointment to the civil service should become final. According to the Chief 

Human Capital Officers (CHCOs) that GAO interviewed, supervisors often do 

not use this time to make performance-related decisions about an employee’s 

performance because they may not know that the probationary period is 

ending or they have not had time to observe performance in all critical areas. 

3. Formal procedures—specifically chapters 43 and 75 of title 5 of the United 

States Code and OPM implementing regulations—require agencies to follow 

specified procedures when dismissing poor performing permanent employees, 

but they are more time and resource intensive than probationary dismissals.

Federal employees have protections designed to ensure that they are not subject 

to arbitrary agency actions. These protections include the ability to appeal

dismissal actions to the Merit Systems Protection Board (MSPB) or to file a 

grievance. If employees are unsatisfied with the final decision of the MSPB or an 

arbitrator decision, they may seek judicial review.

The time and resource commitment needed to remove a poor performing 

permanent employee can be substantial. It can take six months to a year (and 

sometimes longer) to dismiss an employee. According to selected experts and 

GAO’s literature review, concerns over internal support, lack of performance 

management training, and legal issues can also reduce a supervisor’s 

willingness to address poor performance.

In 2013, agencies dismissed around 3,500 employees for performance or a 

combination of performance and conduct. Most dismissals took place during the 

probationary period. These figures do not account for those employees who 

voluntarily left rather than going through the dismissal process. While it is 

unknown how many employees voluntarily depart, the CHCOs that GAO 

interviewed said voluntary departures likely happen more often than dismissals.

To help agencies address poor performance, the Office of Personnel 

Management (OPM) makes a range of tools and guidance available in different 

media, including its website, in-person training, and guidebooks. However, 

CHCOs and other experts said agencies are not always aware of this material 

and in some cases it fell short of their needs. Going forward, it will be important 

for OPM to use existing information sources, such as Federal Employee 

Viewpoint Survey results, to inform decisions about what material to develop and 

how best to distribute it.

View GAO-15-191. For more information, 

contact Robert Goldenkoff at (202) 512-2757 

or goldenkoffr@gao.gov.
Page i GAO-15-191 Federal Workforce

Letter 1

Background 4

Agencies Have Multiple Avenues Available to Address Employee 

Performance 5

Various Considerations Can Reduce Willingness to Deal with Poor 

Performance 19

Agencies Dismissed Around 3,500 Employees for Performance in 

2013, but the Overall Magnitude of Employees Leaving for 

Performance Reasons Is Unknown 21

OPM Provides a Range of Tools and Guidance to Address Poor 

Performance but This Assistance May Not Meet All Agency 

Needs 26

Conclusions 29

Recommendations for Executive Action 30

Agency Comments and Our Evaluation 31

Appendix I Objectives, Scope, and Methodology 34

Appendix II Chapters 43 and 75 Similarities and Differences 37

Appendix III Appeal of Removal or Demotion Actions 39

Appendix IV Examples of Tools and Guidance the Office of Personnel Management 

Provides to Help Agencies Address Poor Performance 48

Appendix V Comments from the Office of Personnel Management 49

Appendix VI GAO Contact and Staff Acknowledgments 52

Contents
Page ii GAO-15-191 Federal Workforce

Table

Table 1: Comparison of Approaches for Addressing Poor 

Performance – By Legal Authority 16

Figures

Figure 1: The Dismissal Process under Chapter 43 15

Figure 2: Performance Dismissals By Legal Authority and 

Employment Status – 2013 22

Figure 3: Trends in Performance Dismissals and Hiring 

Fluctuations (Career Permanent Employees) – 2004-

2013 23

Figure 4: MSPB Decisions on Dismissal Appeals under chapter 43 

– 2013 26

Abbreviations

CHCO chief human capital officer

CSRA Civil Service Reform Act of 1978

EEOC Equal Employment Opportunity Commission 

EHRI Enterprise Human Resources Integration 

Federal Circuit U.S. Court of Appeals for the Federal Circuit 

FEVS Federal Employee Viewpoint Survey 

GEAR Goals-Engagement-Accountability-Results 

MSPB U.S. Merit Systems Protection Board

NOA Nature of Action 

OPM Office of Personnel Management 

OSC U.S. Office of Special Counsel 

PAAT Performance Appraisal Assessment Tool 

SES Senior Executive Service 

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reproduced and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

necessary if you wish to reproduce this material separately.
Page 1 GAO-15-191 Federal Workforce

441 G St. N.W.

Washington, DC 20548

February 6, 2015

The Honorable Ron Johnson

Chairman

Committee on Homeland Security and Governmental Affairs

United States Senate

Dear Chairman Johnson:

A high-performing, effective workforce with the requisite talents, 

multidisciplinary knowledge, and up-to-date skills is critical to helping the 

federal government address increasingly complex and rapidly evolving 

challenges. However, managing employee performance has been a longstanding government-wide issue and the subject of numerous reforms 

since the beginning of the modern civil service. Without effective 

performance management, agencies risk not only losing (or failing to 

utilize) the skills of top talent, they also risk missing the opportunity to 

observe and correct poor performance. As even a small number of poor 

performers can negatively affect employee morale and agencies’ capacity 

to meet their missions, poor performance should be addressed sooner 

rather than later, with the objective of improving it. The Office of 

Personnel Management (OPM) characterizes poor performance as the 

failure of an employee to do his or her job at an acceptable level.

Federal employees and agency leaders share a perception that (1) 

supervisors ineffectively address poor performance, and (2) federal 

performance management systems are not built to address poor 

performance. For example, in the 2014 Federal Employee Viewpoint 

Survey (FEVS), 28 percent of respondents said that steps are taken to 

deal with a poor performer who cannot or will not improve in his or her 

work unit.1 A recent report analyzing the views of agency chief human 

capital officers (CHCO) found their agencies’ respective performance 

 1

FEVS is a tool offered by OPM that measures employees’ perceptions of whether, and to 

what extent, conditions characterizing successful organizations are present in their 

agencies. Forty-two percent of respondents disagreed with the statement and 27 percent 

neither agreed nor disagreed. 
Page 2 GAO-15-191 Federal Workforce

management systems make it difficult for managers to address poor 

performers and that many are doing so inadequately.2

We were asked to examine the rules and trends relating to the review and 

dismissal of employees for poor performance. Our objectives were to (1) 

describe and compare avenues for addressing poor performance, 

including the formal procedures required when dismissing employees for 

poor performance; (2) describe issues that can affect an agency’s 

response to poor performance; (3) determine trends in dismissals and 

other agency actions taken for poor performance since 2004; and (4) 

assess the extent to which OPM provides the policy, guidance, and 

training that agencies say they need to address poor performance.

To address the first objective, we reviewed relevant sections of title 5 of 

the United States (U.S.) Code–commonly referred to as title 5–and OPM 

regulations to determine the authority agencies have to address poor 

performance in the competitive and excepted services and in the senior 

executive service, including formal procedural and employee appeal 

rights.3 To describe issues that can affect an agency’s response to poor 

performance, we interviewed

• OPM officials from the Merit System Accountability and Compliance 

Office, Office of Employee Services, and other offices that work with 

agencies to address poor performance;

• officials of the Merit Systems Protection Board (MSPB), including the 

Executive Director, and representatives from the Office of Regional 

Operations, the Office of Appeals Counsel, and an administrative 

judge;

 2

Partnership for Public Service, Embracing Change: CHCOs Rising to the Challenge of an 

Altered Landscape (Washington, D.C.: May 2014). 

3

Our discussion of procedural and appeal rights under title 5 applies to competitive service 

positions as well as those excepted service positions in executive agencies which have 

not been excluded from these title 5 (and OPM regulation) provisions. Many positions in 

the excepted service are not covered under title 5 (in whole or in part), including those 

positions covered under alternative personnel systems. Even where excepted service 

positions are covered under the procedural and appeal rights under title 5, differences 

exist in that coverage and will be noted, as appropriate.
Page 3 GAO-15-191 Federal Workforce

• selected CHCOs chosen for their particular expertise in the issue 

area, as identified through the Executive Director’s Office of the 

CHCO Council and previous GAO work on related topics;

• National Treasury Employees Union officials;

• American Federation of Government Employees officials;

• officials from the Federal Managers Association;

• individual members of the Federal Employees Lawyers Group;

• officials from the Partnership for Public Service;

• officials from the Senior Executives Association; and

• selected individuals with expertise in performance management from 

academia and the private sector.

To address the third objective, we analyzed data from OPM’s Enterprise 

Human Resources Integration (EHRI) data warehouse to identify trends in 

ratings and performance-related personnel actions. This includes the 

number of employees dismissed, demoted, or reassigned for 

performance reasons and the number of employees who voluntarily 

resigned or retired over a three year period after receiving a “less than 

fully successful” or lower performance rating.

We also interviewed individuals with extensive experience in federal 

performance management issues to better understand the magnitude of 

other strategies agencies use to address poor performance, such as 

employees voluntarily leaving as a result of supervisory performance 

management activities. We reviewed MSPB data on employee appeals 

for performance-related actions and interviewed MSPB officials to 

determine the number, time to process, and outcomes of those appeals. 

We determined the data used in this report to be sufficiently reliable for 

our purposes. To determine data reliability, we reviewed our past 

analyses of the data maintained by OPM, interviewed OPM and MSPB 

officials knowledgeable about the data, and conducted electronic testing 

of EHRI to assess the accuracy and completeness of the data used in our 

analyses.

To address the fourth objective, we reviewed the guidance and tools that 

OPM provides to agencies to assist them in addressing poor 

performance. We assessed OPM’s tools and guidance by comparing their 

content to what is needed, as determined by CHCOs, key stakeholders, 
Page 4 GAO-15-191 Federal Workforce

and experts. For further information on our scope and methodology, see 

appendix I. 

We conducted this performance audit from February 2014 through 

January 2015 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.

How and when federal agencies can dismiss or take action to address 

poor performance has been a long-standing personnel issue that dates 

back to the creation of the civil service and has been the subject of a 

number of reforms since the civil service began. Modern merit principles 

state that appointments should be based upon qualifications, employees 

should maintain high standards of integrity and conduct, and employees 

should operate free of political coercion. However, according to the 

MSPB, the mechanisms put in place to ensure merit principle goals are 

met have at times been seen as bureaucratic obstructions that reduce 

civil service effectiveness.4 The Civil Service Reform Act of 1978 (CSRA) 

was intended, in part, to address the difficulty of dismissing employees for 

poor performance.5 Among other changes, CSRA established new 

procedures for taking action against an employee based on poor 

performance set forth under chapter 43 of title 5 of the U.S. Code.6

Despite CSRA’s enactment, addressing poor performance continues to 

be a complex and challenging issue for agencies to navigate. In 1996, we 

testified that the redress system that grew out of CSRA and provides 

protections for federal employees facing dismissal for performance or 

other reasons diverts managers from more productive activities and 

 4

U.S. Merit Systems Protection Board, Addressing Poor Performers and the Law

(Washington, D.C.: September 2009).

5

Pub. L. No. 95-454, 92 Stat. 1111 (Oct. 13, 1978).

6

Prior to CSRA, in order to dismiss an employee for poor performance, an agency had to 

follow adverse action procedures under chapter 75 of title 5 of the U.S. Code, which 

permitted removal only if it would promote the efficiency of the service. S. Rep. No. 95-

969, at 9-10, 39-43 (1978). CSRA also made amendments to chapter 75.

Background
Page 5 GAO-15-191 Federal Workforce

inhibits some of them from taking legitimate actions in response to 

performance or conduct problems.7 In 2005, we reported on ways 

agencies have sought to better address poor performance, including 

more effective performance management and efforts to streamline appeal 

processes.8 In 2014, we testified that opportunities remain for agencies to 

more effectively deal with poor performance through enhanced 

performance management.9

In general, agencies have three means to address employees’ poor 

performance, with dismissal as a last resort: (1) day-to-day performance 

management activities (which should be provided to all employees, 

regardless of their performance levels), (2) dismissal during probationary 

periods, and (3) use of formal procedures. Agencies’ choices will depend 

on the circumstances at hand.

The first opportunity a supervisor has to observe and correct poor 

performance is in day-to-day performance management activities. 

Performance management and feedback can be used to help employees 

improve so that they can do the work or—in the event they cannot do the 

work—so that they can agree to move on without going through the 

dismissal process. Agencies invest significant time and resources in 

recruiting potential employees, training them, and providing them with 

institutional knowledge that may not be easily or cost-effectively 

replaceable. Therefore, effective performance management – which 

consists of activities such as expectation-setting, coaching and feedback 

– can help sustain and improve the performance of more talented staff 

and can help marginal performers to become better. According to officials 

we interviewed and our literature review, agencies should seek ways to 

improve an employee’s performance and only dismiss that employee if he 

or she does not reach an acceptable performance level. OPM’s 

 7

GAO, Federal Employee Redress: A System in Need of Reform, GAO/T-GGD-96-110

(Washington, D.C.: Apr. 23, 1996).

8

GAO, Issues Related to Poor Performers in the Federal Workplace, GAO-05-812R

(Washington, D.C.: June 29, 2005).

9

GAO, Federal Workforce: Human Capital Management Challenges and the Path to 

Reform, GAO-14-723T (Washington, D.C.: July 15, 2014).

Agencies Have 

Multiple Avenues 

Available to Address 

Employee 

Performance

Effective Performance 

Management Can 

Produce Desirable 

Outcomes for Agencies 

and Employees
Page 6 GAO-15-191 Federal Workforce

experience suggests that many employees who are considered to exhibit 

performance problems can often improve when action is taken to address 

their performance, such as employee counseling, clarification of 

expectations, or additional training. Performance improvement is 

considered a win-win for both the agency and the employee because it 

preserves the investments agencies have already made in that individual 

and those investments that the individual has made with the agency.

We have previously reported that day-to-day performance management 

activities benefit from performance management systems that, among 

other things, (1) create a clear “line of sight” between individual 

performance and organizational success; (2) provide adequate training on 

the performance management system; (3) use core competencies to 

reinforce organizational objectives; (4) address performance regularly; 

and (5) contain transparent processes that help agencies address 

performance “upstream” in the process within a merit-based system that 

contains appropriate safeguards.10 Implementing such a system requires 

supervisors to communicate clear performance standards and 

expectations, to provide regular feedback, and to document instances of 

poor performance.

In cases where an employee cannot do the work, regular supervisory 

feedback may help the employee realize that he or she is not a good fit 

for the position and should seek reassignment to a more appropriate 

position within the agency or should voluntarily leave the agency, rather 

than go through the dismissal process. According to the performance 

management experts and labor union officials we interviewed, an 

employee voluntarily leaving is almost always preferable to dismissal and 

benefits all parties. Experts stated that such an arrangement can produce 

the following benefits:

• The employee maintains a clean record of performance, allowing him 

or her to pursue a more suitable position. Unacceptable performance 

scores and dismissal actions can severely limit job prospects for the 

employee, within and outside of the federal government. In some 

cases, an employee leaves before a poor rating is issued. Other 

times, employees and agencies may agree to have the record 

 10GAO, Results-Oriented Cultures: Creating a Clear Linkage between Individual 

Performance and Organizational Success, GAO-03-488 (Washington, D.C.: Mar. 14, 

2003).
Page 7 GAO-15-191 Federal Workforce

expunged. Organizations we interviewed stressed that agreeing to a 

clean record of performance as part of a voluntary separation can be 

appropriate, particularly in cases when an employee has otherwise 

demonstrated professional aptitude. They cautioned, however, that 

clean record agreements must be used judiciously, in an effort to 

avoid making a low-performing employee another agency’s problem.11

• The supervisor can focus on fulfilling the agency’s mission, rather 

than expending the time and energy associated with the dismissal 

process.

• The agency and employee avoid costs associated with litigation.

However, effective performance management has been a long-standing 

challenge for the federal government and the issue is receiving 

government-wide attention. In 2011, the National Council on Federal 

Labor-Management Relations (in conjunction with the CHCO Council, 

labor unions, and others) developed the Goals-EngagementAccountability-Results (GEAR) framework. The framework was designed 

to help agencies improve the assessment, selection, development, and 

training of supervisors. GEAR emphasized that agencies should select 

and assess supervisors based on supervisory and leadership 

proficiencies rather than technical competencies, and should hold them 

accountable for performance of supervisory responsibilities. In June 2014, 

OPM officials said that the agency will facilitate the collaboration and 

information-sharing between agencies on their approaches to implement 

the principles outlined in the GEAR framework. They added that OPM will 

continue to provide technical support and expertise on successful 

practices for performance management.12

 11According to OPM officials, employees generally expect a clean record to prevent 

potential employers from learning any adverse information about them. This potentially 

puts an agency official in the position of avoiding inquiries when asked by a potential 

employer about an employee’s performance on the job. OPM officials noted that clean 

record agreements should address, among other things, how the agency will be permitted 

to respond if queried by investigators conducting federal background investigations that 

will form the basis for future decisions about the individual’s suitability or fitness for future 

federal employment, eligibility for access to classified information, or eligibility for access 

to federal systems or facilities. 

12GAO-14-723T.
Page 8 GAO-15-191 Federal Workforce

Given the critical role that supervisors play in performance management, 

it is important for agencies to identify, promote and continue to develop 

effective supervisors. However, according to CHCOs we interviewed and 

to our literature review, performance management continues to be a 

challenge at many agencies for three reasons:

• Some employees promoted to supervisory positions because of 

their technical skill are not as inclined towards supervision.

According to CHCOs we interviewed, as higher-graded work in the 

federal government is typically in managerial and supervisory 

positions, career advancement in many agencies requires that 

employees take on supervisory responsibilities. However, some 

employees critical to meeting the agency’s mission are not 

interested in (or as inclined to conduct) supervisory duties, but are 

promoted by the agency to increase their pay and to retain them. 

As a result, some supervisors are not able to effectively conduct 

performance management activities. NASA addresses this 

problem by offering a dual career ladder structure: one ladder to 

advance employees who may have particular technical skills 

and/or education but who are not interested or inclined to pursue a 

management or supervisory track, and another for those seeking 

managerial responsibilities. One potential benefit to this approach 

is that agencies may have more flexibility to promote supervisors 

who are better positioned to effectively address poor performance.

• Supervisory training may not cover performance management 

sufficiently. Under 5 U.S.C. § 4121, agencies, in consultation with 

OPM, are required to establish training programs for supervisors 

on actions, options, and strategies to use in relating to employees 

with unacceptable performance and in improving that 

performance, and in conducting employee performance 

appraisals, among other things. OPM implementing regulations 

state that all agencies are required to have policies to ensure they 

provide training within one year of an employee’s initial 

appointment to a supervisory position.13 However, some agencies 

include performance management as part of a general new 

supervisory curriculum that also includes training on subjects such 

as cybersecurity, ethics, and an array of human resource policy 

 135 C.F.R. § 412.202(b).
Page 9 GAO-15-191 Federal Workforce

topics. CHCOs told us that receiving training in this way can be 

“like drinking from a fire hose” and can be difficult to fully retain, 

particularly for topics that can benefit from experiential learning, 

such as dealing with poor performance. Some agencies seek to 

address this problem by assigning a new supervisor a mentor to 

assist with ongoing coaching in performance management and in 

other areas where the supervisor may have limited previous 

experience.

• Agencies may not be using the supervisory probationary period as 

intended. A new supervisor is given a 1-year probationary period 

to demonstrate successful performance as a supervisor. During 

the supervisory probationary period, the agency is to determine 

whether to retain that employee as a supervisor or to return the 

employee to a non-supervisory position.14 The MSPB found that 

agencies are not consistently using the probationary period to 

assess new supervisors’ capabilities and supervisors in general 

received varying levels of feedback from management.

15 CHCOs 

told us a related issue is that the supervisory probationary period

may not be long enough for the supervisor to conduct many 

performance management responsibilities associated with the 

agency’s employee appraisal cycle.16 As a result of these issues, 

agencies may not be providing adequate feedback to help new 

supervisors understand where further development is needed and 

if they are well suited for supervisory responsibilities, and new 

supervisors may not have the opportunity to demonstrate 

 14A current federal employee who is appointed to a supervisory position for the first time in 

the competitive service is required to serve a probationary period. 5 U.S.C. § 3321(a)(2).

During that period, if the employee does not perform his or her supervisory functions 

satisfactorily, the agency should remove the employee from the supervisory position and 

return the employee to a position of no lower grade and pay than the previous position. 5 

U.S.C. § 3321(b). An employee properly returned to a non-supervisory position has no 

appeal rights, unless the employee alleges the action was based on partisan political 

affiliation or marital status, in which case the employee may appeal to the Merit Systems 

Protection Board. 5 C.F.R. part 315, subpart I.

15U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision 

of Federal Employees (Washington, D.C.: May 2010).

16Under OPM regulations, agencies may determine the length of the probationary period 

for a supervisor in the competitive service, provided it is of reasonable fixed duration, 

appropriate to the position, and uniformly applied. An agency may establish different 

probationary periods for different occupations. 5 C.F.R. § 315.905.
Page 10 GAO-15-191 Federal Workforce

performance management capabilities. MSPB officials told us that 

some agencies address these issues by providing details or 

rotation opportunities where employees interested in supervisory 

positions can observe and, as appropriate, participate in 

performance management activities in other parts of the 

organization. These rotations not only give the employee more 

experience in that role, but can also give the agency time to 

observe and assess that employee’s potential for success as a 

supervisor. We previously reported that within the Nuclear 

Regulatory Commission, where a high number of technical 

experts are employed, rotational assignments are encouraged to 

build supervisory capacity and to allow interested employees an 

opportunity to gain new experiences and responsibilities.17

As described above, although effective performance management 

continues to be a challenge at many agencies, individual agencies have 

taken steps to better identify those employees with an aptitude towards 

performance management, to develop related leadership skills, and to 

more fully assess those employees before those individuals are given 

supervisory responsibilities. According to OPM officials, other agencies 

have authority to take similar actions as appropriate for their agency.

When an individual enters the competitive service, he or she is put on a 

probationary period which lasts for 1 year.18 Individuals entering the 

excepted service may serve a trial period, often for 2 years. The 

probationary period is the last step in the employee screening process 

during which time, according to an MSPB report, the individual needs to 

demonstrate “why it is in the public interest for the government to finalize 

an appointment to the civil service.” The appeal rights of an individual in 

the probationary period are limited. If an agency decides to remove an 

individual during the probationary period, the agency is not required to 

follow the formal procedures for removing an employee (described 

below). Rather, the agency’s only obligation is to notify the individual in 

 17GAO, Human Capital: Strategies to Help Agencies Meet Their Missions in an Era of 

Highly Constrained Resources, GAO-14-168 (Washington, D.C.: May 7, 2014).

18In the competitive service, probationary periods are required by statute. By regulation, 

OPM has provided for a one year probationary period5 U.S.C. § 3321(a)(1) and 5 C.F.R.

§ 315.801(a). These provisions do not apply to the excepted service.

Supervisors Need to Make 

Effective Use of the 

Probationary Period for 

Individuals Entering the 

Competitive Service
Page 11 GAO-15-191 Federal Workforce

writing of its conclusions regarding the individual’s inadequacies and the 

effective date of the removal.19

Generally, a probationary employee may not appeal their removal.20

Appeal rights are extended to employees in the competitive service and 

to preference eligible employees in the excepted service who have 

completed 1 year of current continuous service.

21 Appeal rights are 

extended to non-preference eligible excepted service employees after 2 

years of current continuous service.22

Because dismissing a poorly performing employee becomes more difficult 

and time consuming after the probationary period, it is important that 

agencies use this time to assess employee performance and dismiss 

those that cannot do the work. However, according to our interviews,

supervisors are often not making performance-related decisions about an 

individual’s future likelihood of success with the agency during the 

probationary period. Interviewees said this can happen for two reasons: 

(1) the supervisor may not know that the individual’s probationary period 

is ending, and (2) the supervisor has not had enough time to observe the

individual’s performance in all critical areas of the job. Because of these 

two possible issues, agencies risk continuing poorly performing 

 195 C.F.R. § 315.804. This requirement applies to competitive service probationary 

employees.

20Probationary employees may only appeal a dismissal action to the MSPB if the 

employee is in the competitive service and alleges the removal was based on partisan 

political reasons or due to the employee’s marital status. 5 C.F.R. § 315.806(b).

21A preference eligible is an individual who is eligible for veterans’ preference. This 

preference affects appeal rights (for those in the excepted service) and is a consideration 

in hiring and reduction-in-force actions as well. The term is defined in 5 U.S.C. § 2108(3) 

to include certain veterans, including disabled veterans. The term also extends to 

individuals having a specified relation to certain veterans, such as widow or widower, wife 

or husband.

22Individuals regarded as probationary employees with limited appeal rights may be 

entitled to full rights based on prior relevant service, irrespective of the probationary status 

of that individual. See, Van Wersch v. Department of Health and Human Services, 197 

F.3d 1144 (Fed. Cir. 1999) and McCormick v. Department of the Air Force, 307 F.3d 1339 

(Fed. Cir. 2002),pet. for reh’g in banc denied, 329 F.3d 1354 (Fed. Cir. 2003). These 

cases involved the interpretation of 5 U.S.C. § 7511, which defines who is covered under 

the adverse action provisions of chapter 75 of title 5 of the U.S. Code pertaining to 

removal and demotions. 
Page 12 GAO-15-191 Federal Workforce

individuals in a position in the civil service, with all the rights that such an 

appointment entails.

According to OPM, to remedy the first problem, some agencies are using 

a tool, such as an automatic notification issued from the agency’s payroll 

system, to remind supervisors that an individual’s probationary period is 

nearing its end and to take action as appropriate. While not all agencies 

use this tool, OPM officials told us that all Shared Service Centers’ 

existing HR systems already contain the functionality to notify supervisors 

that the probationary period is ending. Because it is the agencies’

decision whether or not to use automated notifications, it is important that 

agencies are aware of and understand the potential benefits of this tool. 

Other agencies require an affirmative decision by the individual’s 

supervisor (or similar official) before deciding whether to retain an 

individual beyond the probationary period. By sending a reminder or 

requiring an affirmative decision, supervisors know when the probationary 

period is ending and are prompted to consider the prospects of the

individual, according to CHCOs we interviewed and to our literature 

review. OPM considers an affirmative decision a leading practice and has 

implemented it for its supervisors. However, not all agencies have an 

automated tool to alert supervisors prior to the expiration of an 

employee’s probationary period. 

CHCOs also told us supervisors often do not have enough time to 

adequately assess an individual’s performance before the probationary 

period ends, particularly when the occupation is complex or difficult to 

assess. This can happen for a number of reasons, including

• the occupation is complex and individuals on a probationary period 

spend much of the first year in training before beginning work in their 

assigned areas,

• the occupation is project based and an individual on a probationary 

period may not have an opportunity to demonstrate all of the skills 

associated with the position, and 

• individuals on a probationary period often rotate through various 

offices in the agency and supervisors have only a limited opportunity 

to assess their performance.

In the past, agencies exempt from provisions of title 5 have sought to 

address this by extending the probationary period and limiting appeal 

rights during that time. Unless exempt however, a decision to allow 
Page 13 GAO-15-191 Federal Workforce

agencies to extend probationary periods beyond 1 year and to limit 

appeal rights during that period would require legislative action in certain 

circumstances.

23 CHCOs told us such an extension of the probationary 

period would provide supervisors with time to make a performance 

assessment for those occupations that are particularly complex or difficult 

to assess. However, they cautioned that such an extension would only be 

beneficial if an agency had effective performance management practices 

in place and it used the extra time for the purpose intended.

Generally, once an employee has completed a probationary period, if that 

employee is a poor performer who does not voluntarily leave, an agency 

is required to follow the procedural requirements under either 5 U.S.C. 

§ 4303 (hereinafter “chapter 43”) or 5 U.S.C. § 7513 (hereinafter “chapter 

75”) in order to take an action such as removal.24 Though the process for 

dismissal under both authorities shares several common steps, some key 

differences exist. One key difference under chapter 43 is the employee 

must be given a formal opportunity to improve.

While the law and OPM implementing regulations establish requirements 

and timeframes for certain steps under chapter 43 dismissal actions, 

experts representing various agency and employee perspectives told us 

that the practical implementation of chapter 43 is time consuming and 

resource intensive. For example, based on the experiences of experts we 

interviewed, it often takes 50 to 110 days to complete steps associated 

with the performance improvement period (PIP). Overall, it can take six 

months to a year (and sometimes significantly longer) to dismiss an 

 23For example, as noted previously, the provision establishing coverage of procedural and 

appeal rights for those removed or demoted under the provisions of chapter 75 of title 5 

has been interpreted to extend appeal rights irrespective of the probationary status of that 

individual due to prior relevant service of that individual.

24While we refer to “poor” performance for purposes of this report, the term set forth under 

chapter 43 is “unacceptable” performance, which is defined as performance of an 

employee which fails to meet established performance standards in one or more critical 

elements of such employee’s position. 5 U.S.C. § 4301(3). References in this report to 

chapter 43 and 75 process requirements encompass requirements contained in OPM 

implementing regulations, found at 5 C.F.R. part 432 (for chapter 43) and 5 C.F.R. subpart 

D of part 752 (for chapter 75). 

Formal Procedures Are 

Required to Dismiss Poor 

Performing Permanent 

Employees, but Related 

Processes Are Time and 

Resource Intensive
Page 14 GAO-15-191 Federal Workforce

employee.25 Moreover, once an employee is dismissed from his or her 

agency, he or she may file an appeal with the MSPB. As we report later, it 

took the MSPB an average of 243 days in 2013 to adjudicate an appeal 

from start to finish. Figure 1 illustrates an example of the dismissal 

process under this procedure. The timeframes cited here are not required 

by statute or regulation. The length of time to address performance 

problems can vary based on the facts and circumstances of each 

situation.

 25Under some collective bargaining agreements, a “pre-PIP” opportunity is required. 

During the pre-PIP, a supervisor is to alert the employee of slipping or poor performance, 

discuss the deficiencies, agree on actions needed to improve performance, and consider 

exchanging assignments among colleagues, if feasible, as an opportunity to improve 

before using a PIP required under chapter 43. According to federal labor union officials we 

interviewed, the pre-PIP period does not add time to the process, but rather helps to 

ensure day-to-day performance management activities occur before a PIP is issued.
Page 15 GAO-15-191 Federal Workforce

Figure 1: The Dismissal Process under Chapter 43

The other option for taking action—chapter 75—is largely similar to 

chapter 43, but has no formal improvement period and does not require a 

specific standard of performance to be established and identified in 

advance. The burden of proof for sustaining a dismissal under chapter 75 

is higher than under chapter 43.

Depending on the circumstances, the differences between the two 

approaches make one option preferable over the other for supervisors, 

according to our interviews and literature research. For example, the 

formal opportunity to improve provided by chapter 43 makes this option 
Page 16 GAO-15-191 Federal Workforce

preferable when there is a possibility of the employee improving after 

receiving additional training or more specific expectations. In contrast, 

because chapter 75 has no improvement period, it is generally faster and 

therefore is preferable for agencies when it is unlikely an employee will 

improve or if the poor performance is in part related to conduct issues. 

Supervisors, working with agency human resources and legal counsel, 

have discretion to determine the most appropriate option for dismissing 

an employee for poor performance. The following table lists examples of 

circumstances where the use of one authority may be more appropriate 

than the other.

Table 1: Comparison of Approaches for Addressing Poor Performance – By Legal Authority

chapter 43 chapter 75

Unacceptable performance may be due to a teachable 

knowledge gap and training, guidance, and/or clearer 

expectations may help the employee improve.

There is unacceptable performance in a critical element within 

the employee’s documented performance standards.

Employee demonstrates a willingness to improve.

Performance is unlikely to be improved with additional training, 

guidance, or clearer expectations, and a good faith effort has been 

made to help the employee.

There is unacceptable performance against an ad hoc standard, such 

as explicit instructions or professional standards established for 

certain occupations, or a critical element.

Conduct or delinquency is contributing to the employee’s poor 

performance.

The employee is not performing although has demonstrated the 

capability of doing so.

It is necessary to dismiss the employee as quickly as possible. This 

may be true for occupations where a single failure could result in loss 

of life, injury, or a breach of national security.

The employee has a medical condition and cannot perform the 

essential functions or duties of a job, with or without reasonable 

accommodation.

Source: GAO analysis of interviews and literature research. I GAO-15-191

Appendix II provides a full comparison of these two legal authorities for 

dismissing employees for performance.
Page 17 GAO-15-191 Federal Workforce

The process for taking action against a career member of the Senior 

Executive Service (SES) for a less-than-fully-successful performance 

rating differs from that for other civil servants.26 Career executives are 

removed from the SES for poor performance as provided for by 5 U.S.C. 

§§ 3592 and 4314(b). Agencies are

• required to either reassign, transfer, or remove a senior executive who 

has been assigned an unsatisfactory performance rating;

• required to remove an executive who has been assigned two 

performance ratings at less than fully successful within a three year 

period; and

• required to remove an executive who receives two unsatisfactory 

ratings within five years.

Unlike dismissals for performance for non-SES civil servants, most career 

SES members are not removed from the agency, but rather from the SES 

only, and they remain employed at a lower grade. Career SES members 

serve a 1 year probationary period upon initial appointment.27 Most career 

executives removed during the probationary period for performance 

reasons (and all removed after completing it) are entitled to placement in 

a GS-15 or equivalent position.28 Removals from the SES for performance 

reasons may not be appealed to the MSPB. However, non-probationary 

career executives may request an informal hearing before an official 

designated by the MSPB.29 Additionally, an executive who believes the 

removal action was based on discrimination may file a discrimination 

complaint with their agency. Or, if an executive believes the removal was 

based on a prohibited personnel practice, such as reprisal for 

whistleblowing, they may go to the Office of Special Counsel (OSC) to 

 26Career SES members are individuals with civil service status (permanent) who are 

appointed competitively to SES positions and serve in positions below the top political 

appointees in the executive branch of government.

275 U.S.C. § 3393(d).

28 Guaranteed placement rights after removal from the SES are set forth in 5 U.S.C. 

§§ 3549. For probationary SES, this right only applies where the executive was appointed 

into the SES from a civil service position. 

295 U.S.C. § 3592(a).
Page 18 GAO-15-191 Federal Workforce

seek corrective action.30 From 2009-2013, twelve senior executives were 

removed from the SES for performance reasons.

In addition to the procedural requirements agencies must adhere to, 

federal employees have additional protections designed to ensure that 

they are not subject to arbitrary agency actions and prohibited personnel 

actions, such as discrimination and reprisal for whistleblowing. In the 

event that an agency dismisses an employee for performance reasons, 

that employee may file an appeal of that agency action with the MSPB. 

During this appeal, an employee has a right to a hearing before an MSPB 

administrative judge. If the employee or agency is unsatisfied with the 

administrative judge’s initial decision, either may request that the full 3-

member board review the matter by filing a petition for review. If the 

employee is unsatisfied with the final decision of the MSPB, the employee 

may seek judicial review of that decision, generally with the United States 

Court of Appeals for the Federal Circuit (Federal Circuit).31 In the 

alternative, an employee who is a member of a collective bargaining unit 

may instead choose to pursue a grievance under the negotiated 

grievance procedure, if the appeal has not been excluded from coverage 

by the collective bargaining agreement. If the matter goes to an arbitrator, 

judicial review of the arbitration award is also available at the Federal 

Circuit. Finally, under certain circumstances, judicial review may be 

sought in United States district court. While these protections are 

important to ensuring due process, they generally add to the time and 

resources agencies commit to addressing poor performance, as well as to 

the overall complexity of the process.

Discrimination complaints and allegations of whistleblowing reprisal are 

redress options available to employees at any time and are not specific to 

 30 The Office of Special Counsel is an independent investigative and prosecutorial agency 

with the primary mission of protecting the employment rights of federal employees and 

applicants for federal employment. 

315 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). Pursuant to the Whistleblower 

Protection Enhancement Act of 2012, as amended, for a 5-year period of time employees 

will have the option of seeking review with any court of appeals of competent jurisdiction if 

challenging the disposition of allegations of whistleblower retaliation.

Employees Facing 

Dismissal for Performance 

Reasons Have Certain 

Protections
Page 19 GAO-15-191 Federal Workforce

the dismissal process.32 Allegations of discrimination in dismissal actions 

may be filed with an agency’s Equal Employment Opportunity office, or 

under the negotiated grievance procedure, if applicable. Allegations of 

reprisal for whistleblowing can be made with the OSC. Employees may 

be more likely to consider such redress options when informed of 

performance problems or of the possibility for dismissal or demotion, 

according to experts and our literature review. Appendix III provides more 

information on appeal avenues available to employees who are dismissed 

or demoted for poor performance under chapters 43 or 75.

A number of agency supports and constraints may reduce a supervisor’s 

willingness to pursue dismissal or other action against a poor performing 

employee. According to representatives from organizations we 

interviewed, supervisors may opt against dismissing a poor performer for 

a variety of reasons, including

Internal support. Supervisors may be concerned about a lack of internal 

support from their supervisors or other internal agency offices involved in 

the dismissal process. Specifically,

• Upper management may view the supervisor as unable to effectively 

manage employees, particularly considering that most employees 

have a history of meeting or exceeding expectations in performance 

ratings. Our analysis found that employees rarely receive 

performance ratings that indicate a problem with performance. In 

2013, about 8,000 of the nearly 2 million federal employees received 

“unacceptable” or “less than fully successful” performance ratings. 

According to one expert we interviewed, senior managers who only 

have knowledge of an employee’s work history through past 

performance ratings may tell a supervisor, “None of the previous 

supervisors had problems with him. Why do you?”

• An agency’s personnel office may lack the capacity to provide 

guidance or an agency’s general counsel or a senior agency official 

may be inclined settle a matter or not pursue a dismissal action 

 32In contrast, private sector employees are considered “at will” and generally can be 

dismissed for any reason, except prohibited reasons such as discrimination, or where 

collective bargaining agreements provide otherwise. Private sector employees may initiate 

an action against their employer alleging employment discrimination by filing a charge of 

discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Various 

Considerations Can 

Reduce Willingness 

to Deal with Poor 

Performance
Page 20 GAO-15-191 Federal Workforce

because of concern over litigation. According to CHCOs we 

interviewed, agencies are increasingly settling performance-related 

actions and discrimination complaints with financial awards, rather 

than litigating the cases. According to the CHCOs, such financial 

payouts may provide an incentive to file such appeals and claims–

even when they are not valid.

Time and resource commitment. As depicted earlier in figure 1, the 

time commitment for removing an employee under chapter 43 can be 

substantial. After communicating performance problems to an employee, 

a supervisor will likely find it necessary to increase the frequency of 

monitoring and documentation he or she conducts and of feedback 

sessions he or she provides during the performance improvement period. 

In turn, this takes time away from other job responsibilities and agency 

priorities.

Supervisory skills and training. Supervisors may lack experience and 

training in performance management, as well as lacking understanding of 

the procedures for taking corrective actions against poor performers. 

Specifically, supervisors may lack (a) confidence or experience having 

difficult conversations; (b) skills or training on addressing poor 

performance, including a basic understanding of the processes under 

chapters 43 and 75; and (c) knowledge or an understanding of 

requirements for addressing poor performance under collective 

bargaining agreements. These factors point to the importance of effective 

selection, assessment, and development of new supervisors, as well as 

to the importance of providing refresher training for current supervisors.

Legal concerns. Supervisors who take performance-based actions may 

need to be involved in providing depositions, witness statements, internal 

meetings, and meeting with attorneys and union representatives for an 

extended period of time where an employee seeks an avenue of redress 

concerning the performance-based action. Supervisors may be 

concerned about appeals, grievances, or discrimination complaints if the 

topic of poor performance is broached.
Page 21 GAO-15-191 Federal Workforce

In 2013, agencies dismissed 3,489 employees for performance or a 

combination of performance and conduct, representing 0.18 percent of 

the career permanent workforce.33 Agencies most often dismissed

employees for performance reasons during the probationary period. As 

noted earlier, dismissing employees during probation is much less time 

and resource intensive than doing so once they are made permanent and 

the procedural and appeal provisions of chapter 43 or 75 come into play. 

As shown in figure 2, dismissals for performance occurred more 

frequently for employees in probationary periods.

 33Figures in this report do not include dismissals for only conduct reasons. 

Agencies Dismissed 

Around 3,500 

Employees for 

Performance in 2013, 

but the Overall 

Magnitude of 

Employees Leaving 

for Performance 

Reasons Is Unknown

Performance Dismissals 

Most Often Occur During 

the Probationary Period
Page 22 GAO-15-191 Federal Workforce

Figure 2: Performance Dismissals By Legal Authority and Employment Status –

2013

Over the last ten years (2004-2013), the number of individuals dismissed 

for performance or a combination of performance and conduct ranged 

from a low of 3,405 in 2006 to a high of 4,840 in 2009. On average, 

around 4,000 individuals were dismissed for performance-related reasons 

annually. The rate of dismissals for individuals in the career permanent 

workforce (2004-2013) range from a low of 0.18 percent in 2013 to a high 

of 0.27 percent in 2009.

Trends in performance dismissals since 2004 are associated with 

fluctuations in the number of probationary employees. Most employee 

dismissals for performance took place during the probationary period in 

each year from 2004 to 2013. The general increase in new hires from 

2006 through 2010 is associated with the number of probationary 

dismissals from 2007 through 2011. As hiring and the number of new 

employees slowed after 2010, so too did the number of dismissals during 

probation.
Page 23 GAO-15-191 Federal Workforce

Figure 3: Trends in Performance Dismissals and Hiring Fluctuations (Career Permanent Employees) – 2004-2013

As an alternative to dismissal, agencies may demote or reassign 

employees for poor performance. Agencies reassigned 652 employees 

for performance-related reasons in 2013, with nearly all following an 

unacceptable performance rating. (A reassignment is defined as the 

change of an employee from one position to another without promotion or 

change to lower grade, level or band.) According to our interviews and 

literature review, reassignment is considered appropriate when (1) the 

employee is willing to improve and does not have conduct or delinquency 

issues contributing to their performance issues, and (2) the reasons the 

employee failed in one position is not likely to cause him or her to fail on 

the next job. There were 168 demotions for performance reasons in 2013, 

including 58 for an employee’s failure to successfully complete the 

supervisory or managerial probationary period.
Page 24 GAO-15-191 Federal Workforce

As noted above, dismissing employees is and should be a last resort in 

performance management. Identifying and addressing poor performance 

“upstream” in the performance management process may result in 

outcomes that are more desirable than dismissal, most notably improved 

performance, but also the employee moving to a different position that 

might be a better fit or voluntarily leaving the agency. The extent to which 

cases of employee poor performance result in these outcomes is not 

known.

As mentioned earlier, when the employee cannot perform the work, the 

employee voluntarily leaving the agency can be the most favorable 

outcome for both the agency and the employee. Our analysis of OPM 

data found more than 2,700 cases of employees voluntarily leaving in 

2012 after receiving a “less than fully successful” (or lower) performance 

rating at any point from 2010 to 2012. These cases most likely 

undercount the number of employees voluntarily leaving for performance 

reasons because many employees who have performance problems 

never receive a “less than fully successful” (or lower) performance rating, 

and performance ratings may be expunged as part of an agreement to 

voluntarily leave. However, sufficient data does not exist to conclude that 

employees have voluntarily left federal service due to performance 

reasons.

Because voluntary retirements or resignations result in the employee 

leaving without formally having a personnel action taken against him or 

her, it is not possible to determine from available OPM data the universe 

of employees voluntarily resigning or retiring for performance-related 

reasons. However, according to experts we interviewed, such separations 

happen “all the time.” One CHCO we interviewed estimated that a large 

majority of his agency’s performance-related separations would be 

considered voluntary retirements or resignations and other CHCOs 

agreed that employees with performance issues are more likely to 

voluntarily leave than go through the dismissal process. While an 

“unacceptable” performance rating sends a strong signal to the employee 

that the agency is going to take action for performance reasons, receiving 

an “unacceptable” performance rating is not necessarily an indicator that 

an employee will either be formally dismissed or will voluntarily leave. Of 

the 2,001 employees receiving an “unacceptable” performance rating in 

2009, 1,104 (55 percent) remained employed with the same agency in 

2013, while 897 (45 percent) are no longer with the agency. Those 

remaining with the agency may have improved their performance or may 

have been reassigned within the agency.

Many Poor Performers 

Leave Their Agencies 

Voluntarily, but the 

Magnitude of Those 

Leaving for Performance 

Reasons Is Unknown
Page 25 GAO-15-191 Federal Workforce

While agencies rarely use chapter 43 to dismiss employees, of the 280 

employees dismissed under this legal option in 2013, 125 (45 percent) 

were processed by MSPB.34 As noted above, on average, it took 243 

days to complete the appeal process for initial appeals of dismissals that 

were affirmed.35 In cases where a decision is rendered, the agency’s 

decision to dismiss is usually affirmed. In 2013, 18 cases were affirmed in 

the agency’s favor and 4 were reversed in the employee’s favor. Thirty-six 

cases were dismissed in 2013. Cases may be dismissed for a variety of 

reasons, including lack of jurisdiction, lack of timeliness, withdrawal by the 

appellant, or failure to prosecute.

Sixty-seven of the 125 appeals in 2013 were resolved through settlement, 

a process whereby both the agency and the employee come to a mutual 

agreement prior to the case being heard or decided by the MSPB. If at all 

possible, the MSPB encourages settlements between parties. According 

to government lawyers we interviewed, employees and agencies have a 

number of potential settlement options available related to cases involving 

poor performance. They include expunging poor appraisal ratings in 

return for the employee separating from the agency and waiving further 

appeal rights, provision of employment references that do not provide a 

prospective employer with negative information about the employee, 

agency payment of the employee’s attorney’s fees, provisions relating to 

unemployment compensation, confidentiality clauses, resignation 

agreements, and reassignments.

Figure 4 shows how the MSPB resolved initial dismissal appeals taken 

under chapter 43 in 2013.

 34MSPB data for chapter 75 dismissals do not distinguish between dismissals for 

performance, for misconduct, or for both. Therefore, we did not analyze dismissals under 

chapter 75. 

35This average does not include cases that were previously dismissed without prejudice: a 

process whereby a case is initially dismissed and then later heard after an issue has been 

resolved, or a process relevant to the appeal which has been completed. 

Almost Half of All 

Performance-Related 

Dismissals under Chapter

43 Were Appealed to the 

MSPB in 2013; Most Were 

Settled or Dismissed
Page 26 GAO-15-191 Federal Workforce

Figure 4: MSPB Decisions on Dismissal Appeals under chapter 43 – 2013

Taking action to address poor performance is challenging for agencies, 

due to time and resource intensity, lack of supervisory skill and training, 

and other factors (as described earlier). As a result, tools and guidance 

are needed to help agencies manage employee performance and to 

navigate dismissal processes.

To meet its strategic goal of enhancing the integrity of the federal 

workforce, OPM provides guidance, tools, and training to help agencies 

attain human capital management goals.36 In addition to its regulations, 

OPM makes a range of different tools and guidance available to help 

agencies address poor performance through multiple formats, including 

through its website, webinars, webcasts, in-person training, guidebooks, 

and through one-on-one assistance and consultation with agencies, 

according to OPM officials. Appendix IV provides some examples of the 

tools and guidance OPM developed to help agencies address poor 

performance.

 36Office of Personnel Management, Recruit, Retain, and Honor: Strategic Plan FY2014-

FY2018 (Washington, D.C.: 2014).

OPM Provides a 

Range of Tools and 

Guidance to Address 

Poor Performance but 

This Assistance May 

Not Meet All Agency 

Needs
Page 27 GAO-15-191 Federal Workforce

Our interviews with individuals who have expertise in performance 

management issues indicated that improvements could be made in the 

tools and guidance OPM produces on poor performance to better meet 

their needs, including the following areas:

• Improvements in Content. Multiple experts we spoke with told us the 

content of OPM’s training and guidance seemed to be written for 

human resources (HR) officials or lawyers, rather than supervisors. 

According to one expert, “An average manager will not be able to 

understand what the guidance means if they don’t have time to 

continuously go to their HR office for assistance.” According to OPM, 

its guidance is often written for HR officials charged with assisting 

supervisors in addressing poor performance. We have recently 

reported, however, that HR offices often lack the capacity for assisting 

in performance management-related activities.37 Instead, they are 

focused on transactional human resource activities such as verifying 

benefits and processing personnel actions. Because of this, tools and 

guidance developed for HR officials may not be reaching the 

supervisors who need them.

• Improvements in Outreach. CHCOs and organizations representing 

federal employees and supervisors told us they were unaware of the 

tools and guidance OPM produces on the topic of managing poor 

performance. One group told us that a critical gap in training for 

managers exists, and that “none of the individuals we work with know 

about [OPM training or tools].” According to CHCOs we interviewed, 

some supervisors may lack awareness in part because they lack 

interest in performance management in general and do not seek out 

tools. The CHCOs said there is a role for both the agencies and OPM 

in reinforcing the critical importance of effective performance 

management amongst supervisors.

• Improvements in Format. OPM’s tools and guidance are generally 

posted online or as hard-copy guide books. Both of these methods 

cost-effectively disseminate information to a broad audience and can 

be used by employees when their schedule allows. At the same time, 

experts we spoke with said addressing poor performance is more 

effectively taught in a classroom setting, as it is a sensitive topic 

 37GAO, Human Capital: Strategies to Help Agencies Meet Their Mission in an Era of 

Highly Constrained Resources, GAO-14-168 (Washington, D.C.: May 7, 2014).
Page 28 GAO-15-191 Federal Workforce

where the most practical information is gleaned from fellow class

participants. According to one expert, “The topic of dealing with poor 

performers demands interaction amongst participants.”

OPM told us that developing and promoting tools and guidance can be 

costly and that resources available for that purpose are highly 

constrained. OPM has previously acknowledged that it could do more to 

better assess the tools and guidance it produces. It is also a challenge to 

decide what topics to address, particularly as there are frequently 

changes in human capital initiatives or in topic areas that take 

precedence. Regular meetings with senior OPM officials, use of training 

evaluation and feedback forms, and informal feedback from the CHCO 

Council will help to inform OPM of the tools and guidance to provide. 

However, agencies are not always aware of this material and in some 

cases it falls short of their needs. Going forward, it will be important for 

OPM to fully leverage existing information sources (such as survey 

results) to inform decisions on what material to develop and how best to 

distribute it.

According to OPM, the Employee Services group will deploy a 

comprehensive strategic human capital management needs survey that 

will be distributed to the CHCO Council. The survey will be designed to 

directly solicit information from human capital professionals about what 

relevant tools, guidance, and resources will benefit their human capital 

management processes. This tool is also intended to help OPM with 

developing/providing suggested tools. Deployment is planned for the 

summer of 2015.

While these plans are an important step in helping to ensure agencies get 

the tools and guidance they need, OPM is not fully leveraging information 

provided by two existing sources to help prioritize the tools and guidance 

it develops: the 2014 Federal Employee Viewpoint Survey (FEVS) and 

the Performance Appraisal Assessment Tool (PAAT), a voluntary selfassessment tool agencies can use to assess the strength of their 

performance appraisal system.

In FEVS, performance management-related questions receive some of 

the lowest positive scores in the survey, but OPM told us respondents 

may not have sufficient information to answer the question. These 

questions cover topics such as the extent to which employees believe 

their supervisors are effectively addressing poor performers and whether 

differences in performance are recognized in a meaningful way.
Page 29 GAO-15-191 Federal Workforce

With respect to the PAAT, agencies identified areas of strength and 

weakness in their performance appraisal programs. For example, the 

PAAT includes information on topics such as how often supervisors are 

required to hold feedback sessions with employees, an important avenue 

for dealing with poor performance. It also includes information about how 

agencies deal with unacceptable performance, including the number of 

PIPs, performance-based dismissals, reassignments, and reductions-ingrade. Agencies’ responses provide some insight into their own strengths 

and weaknesses as well as into to the topics where additional tools and 

guidance could be more effectively targeted government-wide. Agencies 

may submit their PAAT results to OPM.38 However, OPM told us that it 

was not using these responses to inform the development of resources 

that would help agencies better address poor performers.

The process for dismissing an employee after the probationary period 

ends can be complex and lengthy. But many of these process challenges 

can be avoided or mitigated with effective performance management. 

Supervisors who take performance management seriously and have the

necessary training and support can help poorly performing employees 

either improve or realize they are not a good fit for the position. We found 

that a number of employees voluntarily resign after receiving negative 

performance feedback.

The probationary period for individuals entering the federal service is the 

ideal time to remove those who cannot do the work required of the 

position, but this period could be more effectively used by agencies. 

Given the number of issues agencies can encounter when addressing 

poor performance after the probationary period ends, improving how the 

probationary period is used could help agencies more effectively deal with 

poor performers.

Effectively addressing poor performance has been a long-standing 

government-wide challenge. OPM has a role in ensuring that agencies 

have the tools and guidance they need to effectively address poor 

performance and to maximize the productivity of their workforces. Though 

OPM already provides a variety of tools, guidance, and training to help 

agencies address performance management issues, more can be done to 

 38Ten agencies submitted a PAAT to OPM in 2012. 

Conclusions
Page 30 GAO-15-191 Federal Workforce

leverage priority information and to make tools and guidance available for 

agencies when and where they need it.

To help strengthen the ability of agencies to deal with poor performers, 

we recommend that the Director of OPM, in conjunction with the CHCO 

Council and, as appropriate, with key stakeholders such as federal 

employee labor unions, take the following four actions:

1. To more effectively ensure that agencies have a well-qualified cadre 

of supervisors capable of effectively addressing poor performance, 

determine if promising practices at some agencies should be more 

widely used government-wide. Such practices include (1) extending 

the supervisory probationary period beyond 1-year to include at least 

one full employee appraisal cycle; (2) providing detail opportunities or 

rotational assignments to supervisory candidates prior to promotion, 

where the candidate can develop and demonstrate supervisory 

competencies; and (3) using a dual career ladder structure as a way 

to advance employees who may have particular technical skills and/or 

education but who are not interested in or inclined to pursue a 

management or supervisory track.

2. To help ensure supervisors obtain the skills needed to effectively 

conduct performance management responsibilities, assess the 

adequacy of leadership training that agencies provide to supervisors.

3. To help supervisors make effective use of the probationary period for 

new employees

• educate agencies on the benefits of using automated notifications

to notify supervisors that an individual’s probationary period is 

ending and that the supervisor needs to make an affirmative 

decision or otherwise take appropriate action, and encourage its 

use to the extent it is appropriate and cost-effective for the 

agency; and

• determine whether there are occupations in which—because of 

the nature of work and complexity—the probationary period 

should extend beyond 1-year to provide supervisors with sufficient 

time to assess an individual’s performance. If determined to be 

warranted, initiate the regulatory process to extend existing 

probationary periods and, where necessary, develop a legislative 

proposal for congressional action to ensure that formal procedures 

for taking action against an employee for poor performance (and a 

Recommendations for 

Executive Action
Page 31 GAO-15-191 Federal Workforce

right to appeal such an action) are not afforded until after the 

completion of any extended probationary period.

4. To help ensure OPM’s tools and guidance for dealing with poor 

performers are cost-effectively meeting agencies’ and supervisors’ needs, 

use SHCM survey results (once available), FEVS results, PAAT 

responses, and other existing information, as relevant, to inform decisions 

on content and distribution methods. The importance of effective 

performance management and addressing poor performance may need 

to be reinforced with agency supervisors so that they more routinely seek 

out tools and guidance.

We provided a draft of this product to the Director of OPM and Chairman 

of MSPB for comment. Written comments were provided by OPM’s 

Associate Director for Employee Services, and are reproduced in 

appendix V. Of our four recommendations, OPM concurred with one 

recommendation, partially concurred with two recommendations, and 

partially concurred with part of a third recommendation. OPM did not 

concur with the first part of this latter recommendation. For those 

recommendations OPM concurred or partially concurred with, OPM 

described the steps it planned to take to implement them. OPM and the 

Executive Director of MSPB also provided technical comments, which we 

incorporated as appropriate.

OPM concurred with our recommendation to assess the adequacy of 

leadership training for supervisors. Specifically, OPM noted that it will 

evaluate how agencies are training new supervisors and provide 

agencies guidance on evaluating the effectiveness of leadership training. 

OPM partially concurred with our recommendation to determine if 

promising practices at some agencies should be more widely used 

government-wide. Importantly, OPM agreed to work with the CHCO 

Council to (1) determine if technical guidance is needed to help agencies 

more effectively use the supervisory probationary period, (2) explore 

more government-wide use of rotational assignments, and (3) discuss 

options for employees to advance without taking on supervisory or 

managerial duties. In each of these cases, OPM noted that agencies 

already have authority to take these actions. We acknowledge OPM’s 

point and have clarified the report accordingly. We maintain, however, 

that OPM can still play a leadership role and encourage agencies to take 

these steps.

Agency Comments 

and Our Evaluation
Page 32 GAO-15-191 Federal Workforce

Our recommendation for OPM to take steps to help supervisors make 

effective use of the probationary period for new employees contained two 

parts. OPM partially concurred with the part of the recommendation 

calling on OPM to determine if certain occupations require a probationary 

period longer than 1-year to allow supervisors sufficient time to assess an 

individual’s performance. In particular, OPM agreed to consult with 

stakeholders to determine, among other things, if an extension to the 

probationary period for certain complex occupations is needed and, if 

necessary, pursue the established Executive Branch deliberation process 

for suggesting legislative proposals. OPM noted that it has authority to 

provide for longer probationary periods under certain circumstances and 

we have modified the recommendation so that it also calls on OPM to 

initiate the regulatory process to do so if warranted. As stated in our 

report, however, extending the probationary period and concurrently 

limiting appeal rights during that time would require legislative action

under certain circumstances. 

At the same time, OPM did not concur with the part of the 

recommendation for OPM to determine the benefits and costs of 

providing automated notifications to supervisors that an individual’s 

probationary period is ending and that the supervisor needs to make an 

affirmative decision. OPM stated that choosing the best method to ensure 

that supervisors are aware that the probationary period is ending and 

appeal rights will accrue is an agency responsibility. We agree. 

OPM also wrote that HR systems at all Shared Service Centers have the 

functionality to notify supervisors when an employee’s probationary 

period is ending. However, as our report notes, even though OPM 

considers having a tool in place to notify supervisors that a probationary 

period is ending to be a leading practice, not all agencies have 

implemented that practice. Accordingly, we have clarified the 

recommendation so that it calls on OPM to educate agencies on the 

benefits and availability of automated notifications to alert supervisors.

OPM partially concurred with our recommendation to use the results of 

various surveys such as the FEVS and other information sources to help 

determine the extent to which its tools and guidance for dealing with poor 

performers are cost-effectively meeting agencies’ needs. Specifically, 

OPM said it would use relevant data from these resources to inform 

decisions about content and distribution methods for the material OPM 

makes available to agencies. At the same time, OPM noted that the 

information contained in these surveys and other data sources had 
Page 33 GAO-15-191 Federal Workforce

certain limitations and may not always be relevant. We agree and have 

clarified the recommendation accordingly.

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Director of the Office 

of Personnel Management, the Chairman of the Merit Systems Protection 

Board, as well as to the appropriate congressional committees and other 

interested parties. In addition, the report will be available at no charge on 

the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report please contact 

me at (202) 512-2757 or goldenkoffr@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. GAO staff who made key contributions to this 

report are listed in appendix VI.

Sincerely yours,

Robert Goldenkoff

Director

Strategic Issues
Appendix I: Objectives, Scope, and 

Methodology

Page 34 GAO-15-191 Federal Workforce

We were asked to examine the rules and trends relating to the review and 

dismissal of employees for poor performance. Our objectives were to (1) 

describe and compare avenues for addressing poor performance, 

including the formal procedures required when dismissing employees for 

poor performance; (2) describe issues that can affect an agency’s 

response to poor performance; (3) determine trends in dismissals and 

other agency actions taken for poor performance since 2004; and (4) 

assess the extent to which OPM provides the policy, guidance, and 

training that agencies say they need to address poor performance.

To describe and compare avenues for addressing poor performance, 

including the formal procedures required when dismissing employees for 

poor performance, we reviewed relevant sections of title 5 of the United 

States Code (title 5) and Office of Personnel Management (OPM)

regulations to describe the process for addressing poor performance in 

the competitive, excepted1

, and Senior Executive services. We analyzed 

the process for taking personnel actions for poor performance under 

chapter 43 and chapter 75 of title 5, including when use of one authority 

over the other may be preferable in certain circumstances.

To determine how agencies are addressing poor performance and to 

understand the practical issues various agency employees consider when 

addressing poor performance, we interviewed OPM officials from the 

Merit System Accountability and Compliance Office, Office of Employee 

Services, and other offices that work with agencies to address poor 

performance; the Merit Systems Protection Board (MSPB) including the 

Executive Director, representatives from the Office of Regional 

Operations, the Office of Appeals Counsel, and an administrative judge; 

selected chief human capital officers (CHCO) chosen for their particular 

expertise in the issue area as identified through the Executive Director’s 

Office of the CHCO Council and previous GAO work on related topics, the 

National Treasury Employees Union, American Federation of 

Government Employees, the Federal Managers Association, individual 

members of the Federal Employees Lawyers Group, the Partnership for 

Public Service and the Senior Executives Association. Additionally, we 

 1

Our discussion of procedural and appeal rights under title 5 applies to those excepted 

service positions in executive agencies which have not been excluded from these title 5 

(and OPM regulation) provisions. Many positions in the excepted service are not covered 

under title 5 (in whole or in part), including those positions covered under alternative 

personnel systems.

Appendix I: Objectives, Scope, and 

Methodology
Appendix I: Objectives, Scope, and 

Methodology

Page 35 GAO-15-191 Federal Workforce

interviewed selected experts from academia and the private sector, 

including Dr. Dennis Daley, Professor of Public Administration, North 

Carolina State University, School of Public and International Affairs; Dr. 

Ellen Rubin, Assistant Professor at Rockefeller College of Public Affairs & 

Policy, University at Albany, State University of New York; Stewart Liff, 

author of Improving the Performance of Government Employees: A 

Manager’s Guide (2011) and The Complete Guide to Hiring and Firing 

Government Employees (2010); and Robin Wink, Esq., who teaches a 

seminar “Managing the Federal Employee: Discipline and Performance 

Process.” Their expertise was determined by a review of their published 

materials or training they provide on the topics of performance 

management and addressing poor performance. We also conducted a 

literature review.

To determine trends in dismissals and other agency actions taken for 

poor performance since 2004, we analyzed data from OPM’s Enterprise 

Human Resources Integration (EHRI) data warehouse for fiscal years 

2004 through 2013, the most recent year available. We analyzed EHRI 

data starting with fiscal year 2004 because personnel data for the 

Department of Homeland Security (which was formed in 2003) had 

stabilized by 2004. Personnel actions, such as separations, demotions, 

and reassignments are assigned Nature of Action (NOA) and legal 

authority codes that describe the action and the legal or regulatory 

authority for the action. We reviewed OPM’s “The Guide to Processing 

Personnel Actions” to determine which NOA/legal authority combinations 

are associated with performance-related dismissals, demotions, or 

reassignments, and with conduct-related dismissals and we confirmed 

these codes with OPM. In some cases, NOA/legal authority combinations 

could cover both performance and conduct. In these cases, we counted 

the action as performance-related only so that a) we would most 

accurately capture the magnitude of actions taken for performance in the 

government, and b) avoid double counting dismissals. Thus, some cases 

counted exclusively as a performance action may have elements of 

conduct as well.

To identify individuals with poor performance who voluntarily retired or 

resigned before action was taken against them, we counted separation 

actions for voluntary retirement or resignations and retirements or 

resignations in lieu of involuntary action where there was a corresponding 

unacceptable performance rating within the separation year or year prior 

to separation. To examine attrition patterns for employees who received 

unacceptable performance ratings, we tracked the status of employees 

who received an unacceptable performance rating in 2008 to determine 
Appendix I: Objectives, Scope, and 

Methodology

Page 36 GAO-15-191 Federal Workforce

how many were dismissed and when, how many voluntarily left the 

government and when and how many remained in the government as of 

2013. There are some data reliability limitations with the rating field. While 

ratings generally reflect recent performance, there can be some variation. 

Not all rating periods are the same across the agencies and they may not 

align with the fiscal year, there may be lags in agencies’ updates of 

ratings, and some ratings are never updated. Consequently, we looked at 

recorded ratings for the past three years to develop a somewhat more 

comprehensive picture of employees’ performance ratings. To assess the 

reliability of EHRI data, we reviewed past GAO assessments of EHRI 

data, interviewed OPM officials knowledgeable about the data, and 

conducted electronic testing of EHRI to assess the accuracy and 

completeness of the data used in our analyses. We reviewed MSPB data 

and interviewed officials to determine the number of employee appeals 

for actions based on performance, the outcomes of the cases, and how 

long it took to resolve those cases. We determined the data used in this 

report to be sufficiently reliable for our purposes.

To assess the extent to which OPM provides policy, guidance, and 

training to help agencies address poor performance, we reviewed 

guidance and tools that OPM provides to agencies to assist them in 

addressing poor performance. We compared the content of OPM tools 

and guidance to what CHCOs, key stakeholders, and experts said is 

needed. We reviewed documentation of guidance and tools that OPM 

provides to agencies to the challenges articulated by CHCOs, key 

stakeholders, and experts. We interviewed OPM officials about 

mechanisms they use to (1) collect information to develop tools and 

guidance, and (2) collect feedback from agencies about the usefulness of 

existing guidance and tools. We also reviewed documentation and 

interviewed OPM officials on its Performance Appraisal Assessment Tool.

We conducted this performance audit from February 2014 through 

January 2015 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.
Appendix II: Chapters 43 and 75 Similarities 

and Differences

Page 37 GAO-15-191 Federal Workforce

chapter 43 chapter 75

Critical Element Agency must prove the performance deficiency is in 

a critical element. 

Agency is not required to prove the performance 

deficiency is in a critical element.

Establishment of 

Performance 

Expectations

When the employee’s performance in one or more 

critical elements is unacceptable, the employee will 

(1) be notified of the deficiency; (2) be offered the 

agency’s assistance to improve; and (3) be warned 

that continued poor performance could lead to a 

change to lower grade or removal. (This is commonly 

referred to as the PIP, an abbreviation for both 

performance improvement plan and for performance 

improvement period.) 

The extent to which an employee is on notice of 

the agency’s expectations is a factor in 

determining the appropriateness of the penalty. 

Also, an agency cannot require that an employee 

perform better than the standards that have been 

communicated to the employee.

Decline Following 

Improvement

If the employee’s performance improves during the 

PIP, and remains acceptable for 1 year, a new PIP is 

necessary before taking an action under this 

chapter. 

There is no obligation to offer a period of 

improvement at any point.

Efficiency of the 

Service

Agency is not required to prove that the personnel 

action will promote the efficiency of the service. 

Agency must prove that the personnel action will 

promote the efficiency of the service.

Burden of Proof Action must be supported by substantial evidence: 

that a reasonable person might find the evidence 

supports the agency’s findings regarding the poor 

performance, even though other reasonable persons 

might disagree. 

Action must be supported by a preponderance of 

the evidence: that a reasonable person would find 

the evidence makes it more likely than not that the 

agency’s findings regarding the poor performance 

are correct.

Advance Notice The agency must provide a notice of proposed action 30 days before any action can be taken, and must 

provide the employee with a reasonable opportunity to reply before a decision is made on the proposal.

Content of Advance 

Notice

The notice must state the specific instances of 

unacceptable performance that are the basis for the action 

and also the critical performance element involved.

The notice must state the specific instances of 

poor performance that are the basis for the action.

Deciding or 

Concurring Official

A person higher in the chain of command than the person

who proposed the action must concur.

The deciding official does not have to be a person 

higher in the chain of command than the person 

who proposed the action.

Agency Decision Agency must issue a final decision within an 

additional 30 days of the expiration of the 30 day 

advance notice period. 

Agency is under no particular time constraint, 

other than there cannot be a delay so extensive 

that it constitutes an error that harms the 

employee.

Penalty Mitigation Once the agency meets the requirements to take an 

action, the MSPB cannot reduce the agency’s 

penalty. 

After finding that the agency meets the 

requirements to take a chapter 75 action, the 

MSPB may reduce the agency’s penalty.

Douglas Factors The Douglas factors are not used. The agency must consider the relevant Douglas 

factors when reaching a decision on the 

appropriate penalty. Douglas factors are 

established criteria that supervisors must consider 

in determining an appropriate penalty to impose to 

address problems with an employee.

Appendix II: Chapters 43 and 75 Similarities 

and Differences
Appendix II: Chapters 43 and 75 Similarities 

and Differences

Page 38 GAO-15-191 Federal Workforce

chapter 43 chapter 75

Affirmative Defenses The agency action will not be sustained if the employee was harmed by the agency’s failure to follow 

procedures, if the agency decision was reached as a result of the commission of a prohibited personnel 

practice, or if the decision is otherwise not in accordance with the law.

Source: MSPB I GAO-15-191
Appendix III: Appeal of Removal or Demotion 

Actions

Page 39 GAO-15-191 Federal Workforce

Set forth below are the basic appeal avenues available to employees who 

are removed or demoted for poor performance pursuant to chapters 43 or 

75.1

In addition to the appeal avenues discussed below, other appeal options 

are available to employees removed or demoted for poor performance.2

For example, while probationary employees are generally unable to 

appeal a removal or demotion to the Merit Systems Protection Board 

(MSPB), those in the competitive service may do so if they believe the 

agency action was based on partisan political reasons or due to the 

employee’s marital status.3 Furthermore, any employee may file an Equal 

Employment Opportunity (EEO) complaint with his or her agency if the 

employee believes that the removal or demotion was motivated by 

unlawful employment discrimination, regardless of whether the employee 

has due process or appeal rights.4 Similarly, any employee who believes 

his or her demotion or removal was the result of a prohibited personnel 

 1

The reference to chapter 43 and 75 is a reference to agency actions (e.g. removal or 

demotion) taken under 5 U.S.C. § 4303 (chapter 43) and 5 U.S.C. § 7513 (chapter 75).

Generally, employees covered under the appeal provisions of chapters 43 and 75 are 

those who have already completed a probationary period. However, in certain 

circumstances, employees serving a probationary period may also be covered by due 

process and appeal provisions. For example, where a competitive service employee has 

already completed 1 year of current continuous service (under other than a temporary 

appointment limited to 1 year or less), that employee has full procedural and appeal rights 

under chapter 75 even though serving in a probationary period. Additionally, excepted 

service employees (except those who are preference eligible) do not have appeal rights 

under chapter 43 or 75 until they have completed 2 years of current continuous service (in 

the same or similar position). Our discussion of appeal rights under chapter 43 and 75 

applies to those positions in the excepted service that have not been excluded from these 

provisions of title 5 of the United States Code (and OPM’s implementing regulations).

2

While we refer to poor performance for purposes of this report, the term set forth under 

chapter 43 is “unacceptable performance,” which is defined as performance of an 

employee which fails to meet established performance standards in one or more critical 

elements of such employee’s position. 5 U.S.C. § 4301(3).

3

5 C.F.R. § 315.806(b).

4

Generally, this process provides for the informal counseling at the employee’s agency, 

filing a formal complaint, investigation of the complaint by the agency (and possible 

hearing conducted by an Equal Employment Opportunity Commission (EEOC) 

administrative judge who issues a recommended decision), and issuance of a final agency 

decision. The employee may appeal the final agency decision to the EEOC, and may also 

file a civil action in district court for a de novo trial. 29 C.F.R. part 1614.

Appendix III: Appeal of Removal or Demotion 

Actions
Appendix III: Appeal of Removal or Demotion 

Actions

Page 40 GAO-15-191 Federal Workforce

practice, such as retaliation for whistleblowing, may go to the Office of 

Special Counsel (OSC) to seek corrective action.5

Chapters 43 and 75 provide that an employee with appeal rights who 

wants to contest an agency decision to remove or demote may file an 

appeal of that agency decision with the MSPB.6 If that employee is a 

member of a collective bargaining unit, the employee also has the option 

of pursuing a grievance under negotiated grievance procedure if the 

appeal has not been excluded from coverage by the collective bargaining 

agreement. The employee may pursue either option, but not both.7

If an employee chooses to appeal his or her removal or demotion to the 

MSPB, the employee must do so within 30 days after the effective date of 

the agency action or receipt of the agency’s decision (to remove or 

demote), whichever is later.8 An employee who files an appeal with the 

MSPB has a right to a hearing.9

In a performance-based removal or demotion taken under chapter 43, an 

agency must establish that (1) OPM approved the agency’s performance 

appraisal system,10 (2) the agency communicated to the employee the 

performance standards and critical elements of his or her position, (3) the 

 5

The Office of the Special Counsel may seek to delay the removal or demotion action 

pending an OSC investigation if OSC determines there are reasonable grounds to believe 

that the demotion or removal action is the result of a prohibited personnel practice. 

5 U.S.C. § 1214.

6

5 U.S.C. §4303(e) and § 7513(d).

7

5 U.S.C. §7121(e)(1); 5 C.F.R. § 432.106(c), 5 C.F.R. § 752.405(b).

8

5 C.F.R. § 1201.22(b).

9

5 U.S.C. § 7701(a)(1).

10While an agency has the burden of proving that its performance appraisal system was 

approved by OPM, ordinarily the MSPB will presume that OPM has done so. However, the 

MSPB will require the agency to submit evidence of such approval where the employee 

alleges there is reason to believe OPM did not approve the agency’s system or that the 

agency’s system has undergone significant changes since such approval. Prichard v. 

Department of Defense, 117 M.S.P.R. 88 (2011).

Appeal Avenues: 

Chapter 43 and 75 

Removal or Demotion 

Actions

Merit Systems Protection 

Board Appeal
Appendix III: Appeal of Removal or Demotion 

Actions

Page 41 GAO-15-191 Federal Workforce

employee’s performance standards are valid11 (performance standards 

are not valid if they do not set forth the minimum level of performance that 

an employee must achieve to avoid removal for unacceptable 

performance12), (4) the agency warned the employee of the inadequacies 

of his or her performance during the appraisal period and gave the 

employee a reasonable opportunity to improve, and (5) the employee’s 

performance remained unacceptable in at least one critical element. 

White v. Department of Veterans Affairs, 120 M.S.P.R. 405 (2013).

In a removal or demotion action taken under chapter 75, an agency must 

establish that the action will “promote the efficiency of the service.”13 A 

specific standard of performance does not need to be established and 

identified in advance for the employee; rather, an agency must prove that 

its measurement of the employee’s performance was both accurate and 

reasonable. Shorey v. Department of the Army, 77 M.S.P.R. 239 (1998); 

Graham v. Department of the Air Force, 46 M.S.P.R. 227 (1990) (agency 

contention that “basic medical care” was performance standard for 

physician was not unreasonable).

While it is within an agency’s discretion to take an action under chapter

75 rather than chapter 43, an agency taking an action under chapter 75 

may not circumvent chapter 43 by asserting that an employee should 

have performed better than the standards communicated to the 

employee. Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 

1985), cert.denied, 475 U.S. 1111 (1986), reh. denied, 476 U.S. 1189 

(1986).

An employee subject to a removal or demotion action under chapter 75 

has no right to a performance improvement period and the failure to 

afford an employee one is not grounds for reversing the agency action. 

However, an agency’s failure to provide such a period is relevant to the 

 11Under 5 U.S.C. § 4302(b)(1), an agency is required to establish performance standards 

which, to the maximum extent feasible, permit the accurate appraisal of performance, 

based on objective criteria. The fact that performance standards may call for a certain 

amount of subjective judgment does not render them invalid, especially where the position 

involves the type of professional judgment which is not subject to a mechanical rating 

system. Neal v. Defense Logistics Agency, 72 M.S.P.R. 158, 161 (1996). 

12Henderson v. National Aeronautics and Space Administration, 116 M.S.P.R. 96 (2011). 

135 U.S.C. § 7513(a); 5 C.F.R. § 752.403.
Appendix III: Appeal of Removal or Demotion 

Actions

Page 42 GAO-15-191 Federal Workforce

consideration of whether the penalty (removal or demotion) is reasonable; 

specifically, whether or not the employee was on notice that the deficient 

performance might be the basis for an adverse action.; Fairall v.Veterans 

Administration, 844 F.2d 775 (Fed. Cir. 1987); Madison v. Defense 

Logistics Agency, 48 M.S.P.R. 234 (1991).

In an initial decision issued by the MSPB administrative judge, a removal 

or demotion taken under chapter 43 will be sustained if the agency’s 

decision is supported by substantial evidence or, in a case brought under 

chapter 75, is supported by a preponderance of the evidence.14 However, 

even where the burden of proof is met, if the employee shows harmful 

error in the agency procedure used in arriving at the decision, or that the 

decision was based on a prohibited personnel practice, the agency 

decision may not be sustained.15

The initial decision becomes final 35 days after issuance, unless a party 

requests the full 3-member board (the Board) review the matter by filing a 

petition for review.16 OPM may also file a petition for review but only if 

OPM believes the opinion is erroneous and will have a substantial impact 

on civil service law, rule, or regulation.17 If the Board grants the petition for 

review (for example, where new and material evidence is available or the 

decision is based on erroneous interpretation of law18) the Board may 

affirm, reverse, or vacate the initial decision (in whole or in part), may 

 145 U.S.C. § 7701(c)(1)(A) and 5 U.S.C. § 7701(c)(1)(B), respectively. Substantial 

evidence is a lower standard of proof than preponderance of the evidence. 5 C.F.R. § 

1201.56(c).

155 U.S.C. § 7701(c)(2). Harmful error is that which is likely to have caused the agency to 

reach a different conclusion from the one it would have reached absent the error and 

which caused substantial harm or prejudice to the employee’s rights. 5 C.F.R. 

§ 1201.56(c)(3). 

16Parties must petition within 30 days after receipt of the decision, although the Board may 

extend the 30-day period for good cause shown. 5 U.S.C. § 7701(e)(1). A party may also 

request that the initial decision be vacated if a settlement agreement has been entered 

into by the parties. 5 C.F.R. § 1201.113(a).

175 U.S.C. § 7701(e)(2).

185 C.F.R. § 1201.115.
Appendix III: Appeal of Removal or Demotion 

Actions

Page 43 GAO-15-191 Federal Workforce

modify the decision, or may send the matter back to the administrative 

judge for further processing.19

An employee (but not the agency) may obtain judicial review of a final 

MSPB decision with the United States Court of Appeals for the Federal 

Circuit (hereinafter referred to as the Federal Circuit) by filing a petition for 

review within 60 days of the final Board action.20 Under certain limited 

circumstances, OPM may also obtain review at the Federal Circuit. 

However, if OPM did not intervene in the matter before the MSPB, then 

OPM must first petition the MSPB for a reconsideration of its decision 

before petitioning the Federal Circuit for review.21

The Federal Circuit reviews and sets aside agency action, findings or 

conclusions found to be (1) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law, (2) obtained without procedures 

required by law, rule or regulation being followed, or (3) unsupported by 

substantial evidence. 5 U.S.C. § 7703(c).

If the employee files a grievance under negotiated grievance procedure, 

and the parties are not able to resolve the matter, the exclusive 

representative or the agency may invoke binding arbitration. The 

employee cannot invoke arbitration.22 An arbitrator is to adhere to the 

same burdens of proof for sustaining agency actions under chapter 43 or 

75 as are required if appealed at the MSPB.23 Judicial review of an 

arbitrator award, as with a final MSPB decision, may be obtained at the 

Federal Circuit. The Federal Circuit review is conducted in the same 

 195 C.F.R. § 1201.117.

205 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). Pursuant to the Whistleblower 

Protection Enhancement Act of 2012, as amended, for a 5-year period of time employees 

will have the option of seeking review with any court of appeals of competent jurisdiction if 

challenging the disposition of allegations of whistleblower retaliation. Pub. L. No. 112-199, 

§ 108, 126 Stat. 1465, 1469 (Nov. 27, 2012), amended by the All Circuit Review Extension 

Act, Pub. L. No. 113-170, 128 Stat. 1894 (Sept. 26, 2014).

215 U.S.C. § 7703(d).

225 U.S.C. § 7121(b)(1)(C)(iii).

235 U.S.C. § 7121(e)(2). See also, Cornelius v. Nutt, 472 U.S. 648, 660-661, (1985) 

(arbitrator is to apply the same substantive rules as the MSPB).

Negotiated Grievance 

Procedure
Appendix III: Appeal of Removal or Demotion 

Actions

Page 44 GAO-15-191 Federal Workforce

manner and under the same conditions as if the matter had been decided 

by the MSPB.24

Where an employee with appeal rights under chapter 43 or 75 believes 

that unlawful discrimination motivated his or her removal or demotion, the 

employee may choose to file a discrimination complaint with his or her 

agency (referred to as a “mixed-case complaint”) – or may file an appeal 

with the MPSB (referred to as a “mixed-case appeal”).25 If the employee is 

a member of a collective bargaining unit, the employee also has the 

option of pursuing a grievance alleging discrimination under the 

negotiated grievance procedure where such appeals have not been 

expressly excluded from coverage by the collective bargaining 

agreement. The employee may either pursue a mixed case (complaint or 

appeal) or a negotiated grievance procedure, but not both.26

Where an employee chooses to pursue a mixed-case complaint and has 

filed a complaint of discrimination,27 an agency has 120 days from the 

filing of the complaint to issue a final decision on that complaint of 

discrimination. If the decision is not issued timely, the employee may 

appeal to the MSPB at any time after the expiration of the 120 days.28 Or, 

if the employee is dissatisfied with a final agency decision, the employee 

may appeal to the MSPB within 30 days of receipt of the decision.29

Instead of filing an appeal with the MSPB, the employee also has the 

 245 U.S.C. § 7121(f).

25An employee must choose between filing a complaint with his or her agency or filing an 

appeal with the MSPB, the employee may not do both. 29 C.F.R. § 1614.302.

265 U.S.C. § 7121(d).

27Prior to filing a complaint of discrimination, an employee must initiate contact with an 

EEO counselor within 45 days of the date of the matter alleged to be discriminatory. The 

employee must file a complaint with the agency within 15 days of receipt of the notice of 

the right to file a complaint (generated at the close of the pre-complaint processing 

period). 29 C.F.R. §§1614.105 and 1614.106.

285 U.S.C. § 7702(e)(2); 29 C.F.R. § 1614.302(d), 5 C.F.R. § 1201.154(b)(2).

295 U.S.C. § 7702(a); 29 C.F.R. § 1614.302(d), 5 C.F.R. § 1201.154(b)(1).

Appeal Avenues 

When Discrimination 

is Alleged

Mixed Cases
Appendix III: Appeal of Removal or Demotion 

Actions

Page 45 GAO-15-191 Federal Workforce

option of filing a civil action in district court.30 Filing an action in district 

court results in a de novo review.31

Where an employee chooses to pursue a mixed case appeal, the 

employee must file with the MSPB within 30 days after the effective date 

of the removal or demotion action.32

If the employee appeals to the MSPB—either under a mixed case 

complaint or a mixed case appeal—the appeal is to be processed in 

accordance with MSPB’s appellate procedures (including a right to a 

hearing) and a decision must be rendered by MSPB within 120 days after 

the appeal is filed.33 Within 30 days after receiving a final MSPB decision, 

an employee has the choice of petitioning the U.S. Equal Employment 

Opportunity Commission (EEOC) to consider the MSPB decision or filing 

a civil action in district court.34

If the employee petitions the EEOC, the EEOC shall determine within 30 

days whether to consider the MSPB decision.35 If the EEOC determines 

to do so,36 it has 60 days to consider the MSPB record of the proceedings 

and either (1) concur in the Board decision or (2) issue an EEOC decision 

which finds that the Board decision incorrectly interpreted applicable 

discrimination law or that the decision is not supported by the evidence.37

 305 U.S.C. §7702(a) and (e)(1).

31In a de novo review, a matter is reviewed anew as if it had not been reviewed before.

Both the employee and agency get a full review of their positions.

325 C.F.R. § 1201.154(a).

335 U.S.C. § 7702(a)(1); 5 C.F.R. § 1201.156(a).

34If an employee waives the discrimination issue, the appeal may be filed with the Federal 

Circuit. 5 U.S.C. §7702(a)(3) and (b)(1); 5 C.F.R. § 1201.157. Where an employee files a 

civil action in district court, while the discrimination claims are subject to de novo review, 

any non-discrimination claims are reviewed on the record and the MSPB decision on 

these claims is to be affirmed unless found to be arbitrary, capricious, an abuse of 

discretion, not in accordance with law, or unsupported by substantial evidence. Fogg v. 

Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001).

355 U.S.C. § 7702(b)(2).

36If the EEOC determines not to consider the MSPB decision, the employee may file a 

civil action in district court. 5 U.S.C. § 7702(a)(3)(B).

375 U.S.C. § 7702(b)(3). 
Appendix III: Appeal of Removal or Demotion 

Actions

Page 46 GAO-15-191 Federal Workforce

If the EEOC concurs with the MSPB decision, the employee may file a 

civil action in district court.38

If the EEOC issues its own decision, the matter is then immediately 

referred back to the MSPB39 which has 30 days to consider the decision. 

The MSPB may either (1) concur with EEOC’s decision40 or (2) find that 

the EEOC decision incorrectly interprets civil service provisions or that the 

record does not support the EEOC’s decision as to such provisions, and 

reaffirm its initial decision.41

If the MSPB reaffirms its decision, the matter goes to a special panel 

which has 45 days in which to issue a final decision.42 The employee may 

file a civil action in district court if dissatisfied with the special panel 

decision.43

Where an employee chooses to pursue a negotiated grievance procedure 

which results in an arbitration decision, if unsatisfied with the arbitrator’s 

decision the employee (but not the agency) may request, within 35 days 

of the decision, the MSPB conduct a review of that decision.44 The Board 

may require additional development of the record, through submissions of 

evidence or a hearing.45 If not satisfied with the results of the MSPB 

review decision, the employee may continue on with the administrative 

 385 U.S.C. § 7702(b)(5)(A); 5 C.F.R. § 1201.161(f).

395 U.S.C. § 7702(b)(5)(B); 29 C.F.R. § 1614.305(e).

40If the MSPB concurs, the employee may file a civil action in district court. 5 U.S.C. 

§ 7702(c); 5 C.F.R. § 1201.157, § 1201.162(b).

415 U.S.C. § 7702(c); 5 C.F.R. § 1201.162(a). In reaffirming the decision, MSPB may 

make revisions in the decision, as appropriate.

425 U.S.C. § 7702(d); 5 C.F.R. § 1201.171, § 1201.173(c). The special panel consists of 

(1) an individual appointed by the President and confirmed by the Senate, (2) one member 

of the MSPB, and (3) one member of the EEOC. 5 U.S.C. § 7702(d)(6)(A); 5 C.F.R. 

§ 1201.172.

435 U.S.C. § 7702(d)(2).

445 U.S.C. § 7121(d); 5 C.F.R. § 1201.155.

455 C.F.R. § 1201.155(e).

Grievances
Appendix III: Appeal of Removal or Demotion 

Actions

Page 47 GAO-15-191 Federal Workforce

and judicial appeal process provided for mixed case appeals under 5 

U.S.C. § 7702, described above.46

 465 U.S.C. § 7121(d) and 5 U.S.C. § 7702. At a minimum, an employee must first appeal 

the arbitrator’s decision to the MSPB before seeking judicial review in district court.

American Federation of Government Employees, Local 2052 v. Reno, 992 F.2d. 331 (D.C. 

Cir. 1993).
Appendix IV: Examples of Tools and Guidance 

the Office of Personnel Management Provides 

to Help Agencies Address Poor Performance

Page 48 GAO-15-191 Federal Workforce

Tool Format Description

Addressing and Resolving 

Poor Performance, A Guide 

for Supervisors (February 

2013)

Hard copy guide and 

online at Human 

Resources University 

(free)

This guidebook for supervisors describes the legal process for taking action 

against an employee for poor performance, provides answers to frequently 

asked questions, and provides samples of documents provided by a 

supervisor to an employee at different stages in the process of addressing 

performance problems.

Dealing with Poor Performers Lecture based (fee for 

service)

This course provides an overview and tools for dealing with poor performing 

employees. The course material includes information on communicating 

performance matters to employees, developing a performance improvement 

plan, and how to take corrective and legal action when performance 

continues to decline.

Difficult Conversations Online (free) The goal of this course is to provide supervisors with the necessary skills to 

have the difficult conversation that is inherent when dealing with poor 

performance and to provide a safe environment to practice delivering difficult 

conversations.

Merit System Principles and 

Prohibited Personnel 

Practices

Online (free) This course is intended to enhance Merit System Principles awareness and 

understanding among managers throughout the Federal Government.

Multiple topic areas 

addressing poor performance

Website OPM’s website provides agencies with guidance on addressing poor 

performance, including a glossary of terms and concepts used when taking 

performance based actions, an overview of employee appeal options for 

performance based actions, and guidance on how to write valid performance 

standards for employees, among other topics.

Assistance and consultation Email and telephone OPM provides assistance in response to inquiries on how to address and 

resolve poor performance. OPM does not become involved in the details of 

specific cases but will provide agency HR officials or managers with 

assistance regarding commonly asked questions that arise during the 

process.

Performance Appraisal 

Assessment Tool (PAAT)

Voluntary selfassessment The PAAT is designed to help agencies develop and manage performance 

appraisal programs. To participate in the PAAT, agencies answer questions 

on their appraisal programs and OPM scores agencies on a scale from 1-

100. The PAAT has three questions related to poor performance. 

The Federal Employee 

Viewpoint Survey (FEVS)

Electronic survey The FEVS measures employees’ perceptions of whether, and to what extent, 

conditions characterizing successful organizations are present in their 

agencies. Agencies are to use this information to make strategic decisions 

about management. The FEVS includes several questions on performance 

management and dealing with poor performers.

Source: GAO Review of OPM Tools and Guidance I GAO-15-191

Appendix IV: Examples of Tools and 

Guidance the Office of Personnel 

Management Provides to Help Agencies 

Address Poor Performance
Appendix V: Comments from the Office of 

Personnel Management

Page 49 GAO-15-191 Federal Workforce

Appendix V: Comments from the Office of 

Personnel Management
Appendix V: Comments from the Office of 

Personnel Management

Page 50 GAO-15-191 Federal Workforce
Appendix V: Comments from the Office of 

Personnel Management

Page 51 GAO-15-191 Federal Workforce
Appendix VI: GAO Contact and Staff 

Acknowledgments

Page 52 GAO-15-191 Federal Workforce

Robert Goldenkoff, (202) 512-2757 or goldenkoffr@gao.gov

In addition to the individual named above, Tom Gilbert, Assistant Director; 

Shea Bader, Analyst-in-Charge; Sara Daleski; Jeffrey DeMarco; Karin 

Fangman; Colleen Marks; Donna Miller; Cristina Norland; and Rebecca 

Shea made major contributions to this report.

Appendix VI: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(451084)
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