HHS INSTRUCTION 752-l
HHS Transmittal 85.28 (7/19/85)
Subject: ADVERSE ACTIONS
752-l-00 Purpose and Coverage
20 Using Performance Appraisals as a Basis for Reductions in Grade and Removals
30 Deciding Official
40 Disallowance of Representative
50 Proposal and Decision Letters
60 Adverse Action File
70 Predecision Hearings
80 Discrimination or Other Prohibited Personnel Practice
90 Statement of Discrimination Complaint Rights in Decisions
100 Statement of Appeal Rights and Availability of Records
110 Forwarding.Appellate Decisions to the Department
120 Chart of Employee Coverage, Appeal, and Grievance Rights
Exhibit 752-l-A Delegation of Authority
752-l-00 PURPOSE AND COVERAGE
This Instruction states the Department's supplement to Part 752, Subparts A through D, of Office of Personnel Management (OPM) Regulations (5 C.F.R. Part 752) which are incorporated herein by reference. This Instruction covers all HHS employees except those in the Senior Executive Service (SES), the Public Health Service Commissioned Corps, administrative law judges, and others who are excluded by OPM Regulations 5 C.F.R. 752.201(d) and 5 C.F.R. 752.401(c). This Instruction covers removals, suspensions, reductions in grade,reductions in pay, and furloughs of 30 days or less, as provided in 5 C.F.R. Part 752. This Instruction does not state such additional requirements as may be provided by labor-mangement agreements.
- 5 U.S.C. 2302 (law--prohibited personnel practices)
- 5 U.S.C. 7501 through 7513 (law--adverse actions)
- 5 C.F.R. Part 432 (regulations-actions based on unacceptable performance)
- 5 C.F.R. 752.101 through 752.406 (regulations--adverse actions)
- 5 C.F.R. Part 1201 (regulations--appeals to the Merit Systems Protection Board)
- 29 C.F.R. Part 1613 (regulationkdiscrimination complaints)
- FPM Chapter 752 (adverse actions)
- Douglas v. Veteran's Administration (MSPB decision--miti gating and aggravating factors in determining penalties)
- Johnson v. HHS and Merritt v. Justice (MSPB decisions--nexus: off-dutyxsconduct and the efficiency of the service)
- Lovshin v. Navy (performance actions under 5 U.S.C. Chapter 75)
- HHS Instruction 293-l/1613-2 (records disposal)
- HHS Instruction 293-2 (personnel files)
- HHS Instruction 430-2 (performance management for merit pay employees and members of the SES)
- HHS Instruction 430-4 (performance management)
- HHS Instruction 432-l (reduction in grade and removal based) on unacceptable performance)
- HHS Instruction 751-2 (admonishments)
- HHS Instruction 772-l (procedural, appellate, and grievance coverage)
- HHS Instruction 792-2 (employee counseling services)
- HHS Instruction 1613-3 (discrimination complaints)
- HHS Circular 772-l (forwarding appellate decisions)
752-l-20 USING PERFORMANCE APPRAISALS AS A BASIS FOR REDUCTIONS IN GRADE AND REMOVALS
Performance appraisals may be used as a basis for reduction-in grade and removal actions under this Instruction when the case involves both issues of performance and issues other than perfor mance (e.g., misconduct). In Lovshin v. Navy (USCA Fed. Cir., Appeal No. 84-1002, June 21, 1985), the Appeals Court ruled that actions based solely on performance issues may be taken under either 5 U.S.C. Chapter 43 (see HHS Instruction 432-l) or 5 U.S.C. Chapter 75 (i.e., under this Instruction).
752-l-30 DECIDING OFFICIAL
For any adverse action taken under this Instruction, the deciding official must be a different and higher level official than the proposing official, except in the case of furloughs or any action for which 30 days advance written notice is not required under OPM Regulation 5 C.F.R. 752.404(d). (See Exhibit 752-l-A for delegation memorandum.)
752-l-40 DISALLOWANCE OF REPRESENTATIVE
The deciding official is authorized to disallow an employee's representative under OPM Regulations 5 C.F.R. 752.203(d) and 752.404(e). (See Exhibit 752-l-A for delegation memorandum;)
752-l-50 PROPOSAL AND DECISION LETTERS
- Proposing and deciding officials must assure that proposals of and decisions on adverse actions under this Instruction are reviewed before issuance by the appropriate servicing personnel officer or his or her designee for technical and other requirements.
- Sample letters for proposal and decision regarding a removal and a suspension of 14 calendar days or less are shown in Exhibit 752-l-B and Exhibit 752-l-C, respectively. These samples are for use in preparing letters for nonbargaining unit employees. When preparing a proposal or decision letter to a bargaining unit employee, proposing and deciding officials should confer with the servicing labor relations fficer regarding statutory and contractual obligations that may affect the content of the letter. letters,The sample rights,together with the supplemental explanation of are samples only. Their use is not mandatory, and they may be modified to accommodate the circumstances of the particular case, local needs, or preferences.
752-l-60 ADVERSE ACTION FILE
At the time of the notice of proposed action, the adverse action file will be established (see FPM Chapter 752, subchapter 3-3.1). As the processing of the action continues, copies of all relevant material will be added to the file. When the adverse action is completed, the file will be retained by the servicing personnel office. (See HHS Instructions 293-l/1613-2 and 293-2 for main tenance and disposal.)
752-l-70 PREDECISION HEARINGS
There is no requirement for a predecision hearing in 5 C.F.R. Part 752, and it is the policy of this Department not to conduct a predecision hearing.
752-l-80 DISCRIMINATION OR OTHER PROHIBITED PERSONNEL PRACTICE
When the employee alleges that a proposed Part 752 action is based on discrimination or other personnel practice prohibited by 5 U.S.C. 2302, the deciding official shall consider the allegation and any substantiating proof submitted by the employee and then proceed to decision. (This section applies only to proposed Part 752,actions. For information on discrimination allegations regarding Part 752 decisions,see section 752-l-90 below.)
752-l-90 STATEMENT OF DISCRIMINATION COMPLAINT RIGHTS IN
Decisions issued under this Instruction shall state the employee's right to allege discrimination, particular case,as may be applicable in the either (1) in a discrimination complaint within the Department under the provisions of HHS Personnel Instruction 1613-3 or (2) in a grievance under the provisions of a labor management agreement, if appropriate, or (3) in an appeal to the MSPB; as provided in MSPB Regulations 5 C.F.R Part 1201, Subpart D. For adverse actions effected under OPM Regulation 5 C.F.R. 752, Subparts C and D, explanationthat,the statement should include an explanation that, when either procedure (1) or (2) above is used to allege discrimination, the employee retains the right to appeal to the MSPB later as provided in MSPB Regulation 5 C.F.R. 1201.154 (sample statements of discrimination complaint rights for non bargaining.unit employees are contained in Exhibits 752-l-B and 752-1-C).
752-l-100 STATEMENT OF APPEAL RIGHTS AND AVAILABILITY OF RECORDS
A decision on an action effected under OPM Regulations 5 C.F.R. Part 752, Subparts C and D, which is appealable to the MSPB must, at a minimum, provide the information required by MSPB Regulation 5 C.F.R. 1201.21, "Notice of.appeal rights," and should contain the following or similar statement:
Your appeal to the MSPB.should inform the MSPB that the records of your case may be obtained by writing to:
(give complete name and mailing address of the person who will provide the records and other information requested by the MSPB).
This information will assist the MSPB in processing your appeal.
Adverse actions under OPM Regulations 5 C.F.R. Part 752, Subparts A and B, (i.e., suspensions of 14 calendar days or less) are not appealable to the MSPB, whether or not discrimination is alleged. These suspensions can be appealed under the Department's grievance procedure in HHS Personnel Instruction 771-3 or under the provisions of a labor management agreement, as appropriate.
752-l-110 FORWARDING APPELLATE DECISIONS TO THE DEPARTMENT
- Each Servicing Personnel Officer shall immediately forward two copies of any final (see subsection C below) Merit Systems Protection Board (MSPB) decision that sustains or reverses a removal or change to lower grade taken under OPM Regulations 5 CFR Part 752 to:
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Associate Director for Program Coordination
Office of Human Resource Programs, OASPER
538-E Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C. 20201
- Print the word FINAL (see subsections D and E below) in red ink or red pencil on.the upper right hand corner of the first page of each copy of the decision to assure that it is not mistaken for a decision that is not yet final.
- Do not forward an MSPB decision that is not yet final (see subsections D and E below). For example, do not forward a decision of an MSPB regional office (commonly referred to as initial or first-level or Administrative Judge [formerly, Presiding Official] decision) unless it has become final. However, when forwarding a final MSPB decision signed by the Clerk of the Board (i.e., commonly referred to as second-level or Board decisions), do include a copy of the applicable initial decision (because the details of the case frequently are not set forth in Board decisions).
- An initial decision becomes a final decision when it is not further appealed (petitioned) to the MSPB (second level). When an initial decision becomes a final decision, forward two copies of it as indicated in subsections A and B above.
- Before either marking as final or forwarding as final an initial decision, make certain that the decision is in fact final by making a definite determination that neither the appellant nor his or her (former) employing organization has petitioned the Board to review the decision; do not mark or forward as final a decision of an MSPB regional office merely because the time limit for a petition to the Board has elapsed.
752-l-120 CHART OF EMPLOYEE COVERAGE, APPEAL, AND GRIEVANCE RIGHTS
HHS Instruction 772-1 contains a chart that identifies and summarizes the procedural, appellate, and grievance coverage of various types of employees for actions taken under this Instruction.
HHS Exhibit 752-1-A
Transmittal 88.29 (8/11/88)
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Date: AUG 11, 1988
Assistant Secretary for Personnel Administration
Delegation of Authority to Propose and Decide on Adverse Actions Under HHS Personnel Instruction 752-1
Heads of Operating Divisions
Regional Directors for Regions VI, VIII, IX, and X
- Under the authority vested in the Assistant Secretary for Personnel Administration by Memorandum from the Secretary dated January 24, 1983, I hereby delegate the authority to propose and decide adverse actions under HHS Personnel Instruction 752-1, Adverse Actions, to Heads of Operating Divisions, including the Assistant Secretary for Management and Budget for the Office of the Secretary, for employees in their respective organizations, including employees in or under a regional office.
- This authority may be redelgated, and further redelegation may be authorized. A deciding official must be a different and higher level official than a proposing official for any adverse action under this authority, except in the case of furloughs or any action for which thirty days advance written notice is not required by 5 CFR Part 752. All redelegations must be in writing and in accordance with the requirements of HHS Personnel Instruction 250-3 and Chapter 8-100 of the HHS General Administration Manual
- I hereby delegate the authority cited above to the Regional Directors of Regions VI, VIII, IX, and X for the personnel staffs of each Indian Health Service Area that has its Area Office in their respective regions. I hereby delegate the authority cited above to the Regional Director, Region VI, for the personnel staff of the Gillis W. Long Hansen's Disease Center. The authority for these personnel staffs must be redelegated and further redelegation authorized. Redelegations are to be from the Regional Directors to the Regional Personnel Officers or Regional Personnel Managers, who are to redelegate to the Indian Health Service Area Directors, and to the Director of the Gillis W. Long Hansen's Disease Center for the personnel staffs of those organizations.
- This delegation does not include the authority retained by the Secretary to make the decision on the suspension or removal of an employee, whether in a sensitive or a non sensitive position, on grounds of disloyalty or subversion.
- Requirements and instructions for exercising this authority are contained in 5 CFR Part 752 as supplemented by HHS Personnel Instruction 752-l.
- This delegation is effective immediately. It supersedes the ASPER delegation' memorandum of September 30, 1982, Subject: Delegation of Authority to Propose and Decide on Adverse Actions Under HHS Personnel Instruction 752-1. However, existing redelegations made under that memorandum that are consistent with the provisions of this delegation will continue in effect until new redelegations are made under the authority of this memorandum.
/Thomas S. McFee/
Thomas S. McFee
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