Subject: ADVERSE ACTIONS

752-l-00 Purpose and Coverage
      10 References
      20 Using Performance Appraisals as a Basis for
         Reductions in Grade and Removals
      30 Deciding Official
      40 Disallowance of Representative
      50 Proposal and Decision Letters
     60 Adverse Action File
      70 Predecision Hearings
      80 Discrimination or Other Prohibited Personnel Practice
      90 Statement of Discrimination Complaint Rights in
         Decisions
     100 Statement of Appeal Rights and Availability of Records
     110 Forwarding.Appellate Decisions to the Department
     120 Chart of Employee Coverage, Appeal, and Grievance Rights

Exhibit 752-l-A Delegation of Authority

752-l-00 PURPOSE AND COVERAGE

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

752-l-10    REFERENCES

A. 5 U.S.C. 2302 (law--prohibited personnel practices)
B. 5 U.S.C. 7501 through 7513 (law--adverse actions)
C. 5 C.F.R. Part 432 (regulations-actions based on unacceptable performance)
D. 5 C.F.R. 752.101 through 752.406 (regulations--adverse actions)
E.  5 C.F.R. Part 1201 (regulations--appeals to the Merit
     Systems Protection Board)
F.  29 C.F.R. Part 1613 (regulationkdiscrimination complaints)
G.  FPM Chapter 752 (adverse actions)
H.   Douglas v. Veteran's Administration (MSPB decision--miti
       gating and aggravating factors in determining penalties)
I. Johnson v. HHS and Merritt v. Justice (MSPB decisions--nexus:
     off-dutyxsconduct and the efficiency of the service)
J. Lovshin v. Navy (performance actions under 5 U.S.C. Chapter 75)
K. HHS Instruction 293-l/1613-2 (records disposal)
L.  HHS Instruction 293-2 (personnel files)
M. HHS Instruction 430-2 (performance management for merit
      pay employees and members of the SES)
N.  HHS Instruction 430-4 (performance management)
0.   HHS Instruction 432-l (reduction in grade and removal based)
      on unacceptable performance)
P.   HHS Instruction 751-2 (admonishments)
Q.  HHS Instruction 772-l (procedural, appellate, and grievance
      coverage)
R.  HHS Instruction 792-2 (employee counseling services)
S.  HHS Instruction 1613-3 (discrimination complaints)
T.  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 delega
tion 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

A. 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.

B. Sample letters for proposal and decision regarding a removal
     and a suspension of 14 calendar days or less are shown in
     Exhibit 752-l-B and Exhibit 752-l-C, respectively. These
     samples are for use in preparing letters for nonbargaining
     unit employees. When preparing a proposal or decision letter
     to a bargaining unit employee, proposing and deciding
     officials should confer with the servicing labor relations
     officer regarding statutory and contractual obligations
     that may affect the content of the letter. letters,The sample
     rights,together with the supplemental explanation of
     are samples only. Their use is not mandatory, and
     they may be modified to accommodate the circumstances of
     the particular case, local needs, or preferences.

  752-l-60 ADVERSE ACTION FILE

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

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. 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.

B. 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

A.  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

B. 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.

c.  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).

D.  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.

E. 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.