3 FAM 4360
SEPARATION FOR CAUSE
(CT:PER-951; 07-18-2019)
(Office of Origin: HR/ER/CSD)
3 FAM 4361 GENERAL
(CT:PER-951; 07-18-2019)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. It is the responsibility of the head of the agency,
or his or her designee, to determine whether to propose separation and/or to
separate an employee for cause under Section 610 of the Act (22 U.S.C. 4010).
Except as provided in subsections (b)-(d) below, the head of the agency may not
affect the separation of an employee for cause unless the Foreign Service
Grievance Board (FSGB) has first determined that the agency has established
cause for separation in a hearing before the board.
b. If the agencys proposal to separate the employee
for cause is based on misconduct, the employee has a right to a pre-termination
hearing before the board, and the board will determine whether cause has been
established at this hearing.
c. If the agencys proposal to separate an employee
for cause is not based on misconduct, the employee is entitled to a
pre-termination hearing before the board only if the employee is serving under
a career appointment. Employees serving under limited-career-candidate or
noncareer appointments are not entitled to a hearing in this circumstance and
the head of the agency or his or her designee will determine whether cause for
separation has been established.
d. If the employee waives his or her right to a hearing
before the board, the head of the agency or his or her designee will determine
whether cause for separation has been established.
e. If the agencys decision to separate an employee for
cause is based on a criminal conviction for which a sentence of imprisonment of
more than 1 year may be imposed, the employee is not entitled to a
pre-termination hearing before the board and the head of the agency or his or
her designee will determine whether cause for separation has been established.
Conviction includes, but is not limited to, pleading guilty to a crime.
3 FAM 4362 PROPOSING OFFICIALS
(CT:PER-951; 07-18-2019)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
The following officials are authorized to propose
separation for cause against an employee:
|
Agency
|
Proposing Official
|
|
State
|
The Director General of the Foreign Service and Director
of Human Resources
|
|
USAID
|
Deputy Assistant Administrator for Human Resources
(DAA/HR) or Deputy Assistant Inspector General for
Management (for OIG employees)
|
|
USAGM
|
Director of Human Resources (OHR)
|
|
Agriculture
|
Foreign Agriculture Service: First line supervisor;
APHIS: Deputy Administrator (IS); Associate Deputy Administrator; Assistant
Deputy Administrator; Director, Operational Support; Regional Directors;
Director, Human Resources; Chief, Employee and Management Support
|
|
Commerce
|
Director General or equivalent official or designee
|
3 FAM 4363 ADVANCE NOTIFICATION OF
UNSATISFACTORY PERFORMANCE OF DUTIES
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. Before separation for cause of an employee based on
unsatisfactory performance of duties can be proposed, the supervisor must
notify the employee in writing:
(1) Of the job requirements that the employee is
failing to meet satisfactorily;
(2) That the employee has a 90-day period to bring
performance to a satisfactory level;
(3) What the employee must do to bring performance to
a satisfactory level within the 90-day period; and
(4) That the employee's performance will be
reevaluated at the end of the 90-day period.
b. If there is evidence of inexcusable and/or egregious
poor performance, the proposing official may waive the requirements of 3 FAM 4364.
c. Separations of career candidates for unsatisfactory
performance are governed by 3 FAM 2246, 3 FAM 2256, or 3 FAM 2268 but
not by 3 FAM
4360.
3 FAM 4364 PROPOSING SEPARATION FOR
CAUSE
3 FAM 4364.1 Initial Proposal
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
If after consideration of the report of inquiry or
investigation and the factors specified in 3 FAM 4324.3,
the proposing official decides to propose separation for cause, he or she must
notify the employee in writing:
(1) Of the specific reasons for the proposal to
separate for cause;
(2) That the employee may respond orally and/or in
writing and may submit written statements in support of that response to the
proposing official;
(3) That the employees response will be fully
considered by the proposing official;
(4) That subject to 3 FAM 4325, the
employee may have a representative of the employee's choosing;
(5) Of any decision to exclude the employee from the
workplace during the notice period in accordance with 3 FAM 4323;
(6) That the employee must be granted a reasonable
amount of official time to:
(a) Review only the material relied on in proposing the
action; and
(b) Prepare a response to the notice;
(7) That the employee must acknowledge receipt of the
notice of proposed separation for cause as instructed in the notice;
(8) That if the agency recommends separation for
cause, the employee must be placed in a leave-without-pay status or remain in
an absence-without-leave (AWOL) status pending final resolution. If the
Foreign Service Grievance Board (FSGB) does not uphold the separation for
cause, the employee will be entitled to receive back pay for the period during
which he or she was in a leave-without-pay status reduced by any amounts earned
from other employment. Employees who were in an AWOL status are not entitled
to receive back pay; and
(9) That should the employee choose to designate a
representative, such designation must be in writing.
3 FAM 4364.2 Employee's Response
(CT:PER-925; 09-24-2018)
(Reviewed and Revalidated)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. An employee whose official duty station is outside
the United States has 30 days from receipt of the proposal to separate for
cause to respond in writing and/or orally to the proposing official.
b. An employee in the United States has 15 days from
receipt of the proposal to separate for cause to respond in writing and/or
orally to the proposing official.
c. The employee may submit a written request for an
extension of the response deadline. The deciding official will approve the
request if it is reasonable.
3 FAM 4364.3 Action by the
Proposing Official
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. After reviewing the record on which the separation
was based, and the employees response, if any, the proposing official will
decide to:
(1) Withdraw the charges and close the case; or
(2) Admonish the employee; or
(3) Reprimand the employee; or
(4) Suspend the employee for a specific period of
time; or
(5) If the employee is entitled to a separation
hearing and has not waived this right, submit to the Foreign Service Grievance
Board (FSGB) a recommendation that the employee be separated for cause, along
with the notice of proposed separation for cause, the employees response, if any,
and the record on which the proposal is based; or
(6) If the employee is not entitled to a separation
hearing or has waived this right, submit to the head of agency or his or her
designee a recommendation that the employee be separated for cause, along with
the notice of proposed separation for cause, the employees response, if any,
and the record on which the proposal is based.
b. The proposing official will notify the employee of
his or her decision, in writing.
c. If the decision is to reprimand or suspend, the
notice must contain the information provided in 3 FAM 4345,
paragraph b, or 3
FAM 4355, paragraph b, as appropriate.
d. If the decision is to recommend that the employee be
separated for cause, the notice will indicate that the employee must be placed
in a LWOP status and the date when the LWOP becomes effective pending a
decision by the FSGB pursuant to 3 FAM 4366 or a
deciding official pursuant to 3 FAM 4367.
3 FAM 4365 HEARING BY THE FOREIGN
SERVICE GRIEVANCE BOARD
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. A separation-for-cause hearing before the Foreign
Service Grievance Board will be held under the procedures provided in 22 CFR
Chapter IX (Foreign Service Grievance Board Regulations) for those employees
who are entitled to and do not waive such a hearing.
b. Such a hearing must be in lieu of any other
administrative procedure authorized by the Act or any other law.
3 FAM 4366 DECISION BY FOREIGN SERVICE
GRIEVANCE BOARD
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. After conducting a hearing on a proposed separation
for cause, the Foreign Service Grievance Board must issue a decision:
(1) Finding cause was established for separating the
employee from the Service; or
(2) Finding cause was not established for separating
the employee from the Service.
b. The decision must include findings of fact and a
statement of the reasons for the decision of the board.
3 FAM 4367 DECIDING OFFICIAL
(CT:PER-925; 09-24-2018)
(Reviewed and Revalidated)
(Uniform State/USAID/USAGM/ Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. After considering the notice of proposed separation
for cause, the employees response, if any, the record on which the proposal to
separate was based, and the Foreign Service Grievance Boards decision, if any,
the head of agency or his or her designee, may decide to:
(1) Withdraw the charges and close the case; or
(2) Admonish the employee; or
(3) Reprimand the employee; or
(4) Suspend the employee for a specified period of
time; or
(5) Separate the employee for cause in a case where a
hearing is held before the Foreign Service Grievance Board; the employee may
only be separated if the Board finds cause for separation pursuant to 610 of
the Foreign Service Act.
b. The employee will be notified of the decision in
writing.
c. If the decision is to separate the employee, the
notice will:
(1) Advise the employee of the date the separation
will become effective;
(2) Identify the specific charges in the proposal to
separate for cause that have been sustained; and
(3) Make specific reference to the employees right to
obtain judicial review of the decision of the agency head under section 1110 of
the Act (22 U.S.C. 4140).
d. If the decision is to separate the employee, a copy
of the decision letter will be placed in the employees Official Performance
File when the separation becomes effective. If the decision is not to separate
the employee, the employee will be entitled to back pay for the period during
which he or she was in a leave-without-pay status, reduced by any amounts
earned from other employment.
e. If the decision is to reprimand or suspend the
employee, the notice will contain the information provided for in 3 FAM 4345,
paragraph b, or 3
FAM 4355, paragraph b, as appropriate.
3 FAM 4368 EFFECTS OF SEPARATION FOR
CAUSE ON PARTICIPATION IN THE FOREIGN SERVICE, CIVIL SERVICE, OR OTHER U.S. GOVERNMENT
RETIREMENT SYSTEM
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
Eligibility for retirement benefits under the Foreign
Service, Civil Service, or other U.S. Government retirement system may be
affected when an employee is separated for cause. Employees should consult the
relevant statutes and regulations. For the Foreign Service retirement systems,
these are section 610(b) of the Act and 3 FAM 6000.
3 FAM 4369 UNASSIGNED