How to Fire a Federal Employee: PIP, Notice, and MSPB Appeal

Firing a federal employee is a formal, statute-driven process, not a management decision the supervisor can carry out alone. For most career employees, the agency must choose the correct legal track, issue a written proposal with at least 30 days’ advance notice, share the supporting evidence, give the employee time to respond with a representative, and issue a reasoned written decision from a higher-level official before the removal takes effect. Skipping a step, or picking the wrong track, is the usual reason removals get reversed on appeal.

Figure Out Which Rules Apply to This Employee

The first question is whether the employee has full adverse action rights under Chapter 75 of Title 5. Those rights attach to three groups: competitive service employees who have finished probation or completed one year of continuous non-temporary service, preference-eligible veterans in the excepted service with one year of continuous service in the same or similar positions, and non-preference excepted service employees with two years of continuous service in similar positions.¹

Veterans’ preference changes the math. A preference-eligible veteran in the excepted service gets full protections after one year; a non-veteran in the same kind of job has to wait two.² Running an action under the wrong rules because someone missed that distinction is a preventable error.

If the Employee Is Still on Probation, Act Now

Probationary employees can be separated through a much shorter process. Under a standard career-conditional appointment, probation runs one year.³ During probation, the agency terminates the employee by giving written notice that states the reason and the effective date.⁴ There is no proposed action, no 30-day notice, no formal reply period.

Appeal rights are narrow. A terminated probationer can generally appeal to the Merit Systems Protection Board only by alleging the termination was motivated by partisan politics or marital status, or that the agency removed them for pre-appointment conditions without following the proper procedures.⁵

The catch is timing. Probation ends when the employee finishes their scheduled tour on the day before the anniversary date, and the separation must be complete before that shift ends.⁴ Miss the deadline and the employee inherits full due process rights the next morning. If performance or conduct problems are already visible, waiting is the expensive choice.

Choose the Right Track: Performance or Misconduct

For an employee past probation, removal proceeds on one of two tracks, and the choice shapes every step that follows.

A performance-based removal under Chapter 43 applies when the employee is failing to meet the performance standards for the position. The agency has to identify the specific critical elements at issue and support the action with substantial evidence, meaning a reasonable person could reach the same conclusion on the record.⁶ The evidentiary burden is lower than misconduct, but the procedural burden is higher because the agency owes the employee a chance to improve first.

A misconduct-based removal under Chapter 75 covers behavior: policy violations, insubordination, dishonesty, and similar problems. The cause standard is “such cause as will promote the efficiency of the service,” and on appeal the action must be supported by a preponderance of the evidence.⁷⁸ Higher evidentiary standard, but no improvement period, which usually makes it the faster route for clear-cut behavioral cases.

Run a Real Performance Improvement Plan

Before a performance-based action can go anywhere, the employee must have been told the performance standards and critical elements at the start of the appraisal period,⁹ and given a reasonable opportunity to demonstrate acceptable performance once problems surface.¹⁰ Botching this step is the single most common reason performance removals get reversed.

The improvement plan is a written notice that identifies which critical elements are unacceptable, the level of performance the employee has to reach, the assistance the agency will provide, and the consequences of not improving.¹¹ The regulations don’t set a minimum length; the period just has to be reasonable for the duties involved. In practice most agencies use 30 to 120 days.

If the employee improves during the plan and then slips again in the same critical element within one year of when the plan started, the agency can move directly to a proposed removal without running a second plan.¹⁰

Issue the Proposed Removal Notice

Both tracks require written notice of the proposed action at least 30 days before the action can take effect.⁷⁶

For performance cases, the notice has to identify the specific instances of unacceptable performance and the critical elements they fall under. Only instances from the one-year period before the notice date can support the action.⁶ For misconduct cases, the notice must state the specific reasons for the proposed action.⁷

The employee has to be given access to all the evidence the agency relied on. Holding back material evidence at this stage is a due process violation that can sink the whole case on appeal.¹²

During the notice period, the default is that the employee stays on duty in their regular position. Paid administrative leave is available, but it is not the norm under OPM regulations.¹³

The Crime Provision Shortcut

There is one exception to the 30-day rule. When the agency has reasonable cause to believe the employee committed a crime for which a prison sentence can be imposed, it can shorten the advance notice period.⁷ Written notice and an opportunity to reply still apply. The basis for invoking the crime provision should be documented in the file.

Give the Employee a Real Chance to Respond

After the notice goes out, the employee has the right to respond, and the timelines differ:

Misconduct actions: a reasonable time, but no less than 7 days, to respond orally, in writing, or both, and to submit supporting documents.⁷
Performance actions: a reasonable time to respond orally and in writing.⁶

In both cases the employee may be represented by an attorney or another representative.⁷ A deciding official who obviously didn’t engage with the reply gives the MSPB an easy reason to reverse, so take the response seriously.

Have a Deciding Official Weigh the Douglas Factors

A designated deciding official reviews the proposal, the employee’s response, and the supporting record. That official should sit at a higher level than the person who proposed the action. For performance-based removals, the written decision must be concurred in by an employee at a higher level than the proposing official unless the agency head proposed the action, and it must be issued within 30 days after the notice period expires.⁶

For misconduct removals, the deciding official has to weigh the penalty against the twelve Douglas factors, drawn from a 1981 MSPB decision:

Seriousness of the offense, including intent, repetition, and whether it was for personal gain.
The employee’s position, with higher expectations for supervisors, public-facing roles, and fiduciary positions.
Prior disciplinary record, especially for similar conduct.
Past work record, length of service, and reliability.
Effect on the employee’s ability to perform, and on supervisors’ confidence.
Consistency of the penalty with those imposed on other employees for similar conduct.
Consistency with any agency table of penalties.
Impact on the agency’s reputation.
Clarity of the employee’s notice that the conduct was prohibited.
Potential for rehabilitation.
Mitigating circumstances such as unusual job pressures or personal problems.
Adequacy of alternative sanctions.¹⁴

Not every factor has to cut the agency’s way, but the decision letter has to show the relevant ones were actually considered. Boilerplate that lists the factors without analysis is a red flag on appeal.¹⁵ The final decision letter must state the action, its effective date, and the employee’s appeal rights.

Off-Duty Conduct Requires a Nexus

Off-duty conduct can support removal, but only when there is a nexus between the behavior and the efficiency of the service. The agency can establish nexus by showing the misconduct harmed job performance, damaged coworkers’ ability to work with the employee, or interfered with the agency’s mission. For particularly serious conduct, including violent crimes and certain sexual offenses, the connection is presumed and it becomes the employee’s burden to rebut it.

Position matters. Off-duty conduct that implicates honesty or integrity gets closer scrutiny for law enforcement officers, supervisors, and employees in positions of public trust than for lower-graded administrative staff.

Don’t Let the Removal Look Retaliatory

Federal law prohibits using the removal process to retaliate against an employee for protected activity, including reporting what the employee reasonably believes to be a violation of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial danger to public health or safety.¹⁶ Protection applies whether the disclosure went to a supervisor, an inspector general, the Office of Special Counsel, or Congress.

Retaliation for filing a grievance or appeal, cooperating with an IG investigation, or refusing to obey an order that would require breaking the law is also prohibited.¹⁷ The employee can file a complaint with the Office of Special Counsel, which can investigate and seek corrective action.

When the employee has recently engaged in protected activity, timing alone can create an inference of retaliation. The case file has to establish clearly that the removal rests on legitimate grounds independent of the disclosure.

Consider a Settlement or Last Chance Agreement

Removals do not have to go all the way through. At any point the agency and the employee can settle, whether that means a resignation with a neutral reference, a lesser disciplinary action, or a reassignment.

A last chance agreement is a common variant. The agency holds off on removal in exchange for the employee meeting specific conditions, usually maintaining acceptable performance or conduct for a set period, and waiving certain appeal rights. If the employee violates the terms, the agency can proceed with removal. Coercion, bad faith, fraud, or mutual mistake can invalidate the agreement.

What Comes After the Removal Takes Effect

A removed employee has several ways to challenge the action, and the clock runs immediately.

MSPB Appeal

The most common route is a direct appeal to the Merit Systems Protection Board. The employee has 30 calendar days from the effective date of the removal, or from receipt of the agency’s written decision, whichever is later.¹⁸ A written agreement between the parties to try alternative dispute resolution before filing extends the deadline to 60 days.

The MSPB looks at whether the agency followed proper procedures, whether the required evidentiary standard is met (substantial evidence for performance cases, preponderance of the evidence for misconduct cases), and whether the penalty is reasonable.⁸ The Board will not sustain the action if the employee shows harmful procedural error, that the decision rested on a prohibited personnel practice, or that it violated the law.

EEO Complaint

If the employee believes the removal was motivated by discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information, they can file through the agency’s Equal Employment Opportunity office. The process begins with contacting an EEO counselor, typically within 45 days of the alleged discriminatory action.¹⁹ When a case is both appealable to the MSPB and involves discrimination, it becomes a mixed case, and the employee has to elect one forum by filing there first.²⁰

Negotiated Grievance

Bargaining unit employees may be able to challenge a removal through the negotiated grievance procedure in their collective bargaining agreement, which can end in arbitration.²¹ The employee generally must choose between the grievance procedure and an MSPB appeal.

1
Office of the Law Revision Counsel. 5 U.S. Code 7511 – Definitions; Application
2
U.S. Office of Personnel Management. Vet Guide for HR Professionals
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U.S. Office of Personnel Management. Competitive Hiring
4
eCFR. 5 CFR 315.804 – Termination of Probationers for Unsatisfactory Performance or Conduct
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U.S. Merit Systems Protection Board. Adverse Actions: Identifying Probationers and Their Rights
6
GovInfo. 5 U.S. Code 4303 – Actions Based on Unacceptable Performance
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Office of the Law Revision Counsel. 5 U.S. Code 7513 – Cause and Procedure
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Office of the Law Revision Counsel. 5 U.S. Code 7701 – Appellate Procedures
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GovInfo. 5 U.S. Code 4302 – Establishment of Performance Appraisal Systems
10
eCFR. 5 CFR Part 432 – Performance Based Reduction in Grade and Removal Actions
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U.S. Office of Personnel Management. Providing an Opportunity to Improve
12
U.S. Merit Systems Protection Board. Adverse Actions: Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
13
U.S. Merit Systems Protection Board. Adverse Actions: Different Types of Adverse Actions Use Different Rules
14
U.S. Office of Personnel Management. Douglas Factors
15
U.S. Merit Systems Protection Board. Determining the Penalty
16
Office of the Law Revision Counsel. 5 U.S. Code 2302 – Prohibited Personnel Practices
17
U.S. Merit Systems Protection Board. Prohibited Personnel Practices
18
U.S. Merit Systems Protection Board. How to File an Appeal
19
U.S. Equal Employment Opportunity Commission. Overview of Federal Sector EEO Complaint Process
20
U.S. Equal Employment Opportunity Commission. Chapter 4 Procedures for Related Processes
21
Office of the Law Revision Counsel. 5 U.S. Code 7121 – Grievance Procedures