Placed on a Performance Improvement Plan? What a Virginia Federal Employee Attorney Wants You to Know About Chapter 43 and Chapter 75 Actions

In federal service, a performance improvement plan is a formal legal step, and the agency can use what happens during it to support your removal. Many employees treat it as a routine HR matter and only call a Virginia federal employee attorney after the removal notice arrives. By that point, the record that decides the case has usually already been written. Knowing how Chapter 43 and Chapter 75 of Title 5 work, and how agencies sometimes move between them, gives you a real chance to protect your job while the plan is still running.

What is a PIP in federal service?

A PIP is the written notice that your performance is unacceptable in at least one critical element, along with a set period to bring it up to an acceptable level. OPM regulations call this period the opportunity period.

A critical element is a part of your job so important that failing it means your overall performance is unacceptable. Your performance plan lists these elements and the standards for each one. The PIP should name the element you are failing, explain what acceptable work looks like, and describe the help the agency will give you. OPM rules at 5 C.F.R. Part 432 do not set one fixed length. Agency policies and union contracts often do, and periods of 30 to 90 days are common.

What does the agency have to prove to remove me under Chapter 43?

To uphold a performance-based removal or demotion under 5 U.S.C. § 4303, the agency must show with substantial evidence that it followed a series of required steps:

• OPM approved its performance appraisal system
• it communicated your standards and critical elements to you
• your standards were valid
• your performance was unacceptable before the PIP began
• it warned you and gave you a fair chance to improve
• your performance stayed unacceptable during that period

The requirement to prove unacceptable performance before the PIP comes from Santos v. NASA, a 2021 Federal Circuit decision, and it has changed many cases. Substantial evidence is a lower bar than the agency faces in misconduct cases. In return, the agency must give you 30 days’ advance written notice and a chance to reply, and the Merit Systems Protection Board cannot reduce the penalty if the agency proves its case.

How is a Chapter 75 action different?

Chapter 75 lets an agency take adverse action for “such cause as will promote the efficiency of the service,” and that can include poor performance, not only misconduct. An agency may skip the PIP entirely and charge performance under Chapter 75.

The tradeoff for the agency is a heavier burden. Under Chapter 75 it must prove its charges by a preponderance of the evidence, show a connection between the conduct and the efficiency of the service, and justify the penalty under the Douglas factors, a list of 12 considerations the MSPB set out in 1981 that includes your past record, length of service, and consistency with how others were treated. The MSPB can reduce a Chapter 75 penalty it finds too harsh. When a PIP is going badly for the agency, a switch to a misconduct charge such as failure to follow instructions is worth watching for.

What happens if I pass the PIP?

Passing ends the plan, but it does not fully reset the clock. Under 5 C.F.R. § 432.105, if your performance in the same critical element becomes unacceptable again within one year from the start of the opportunity period, the agency can propose removal or demotion without giving you a new PIP. Keep doing the documentation habits you built during the plan for that full year.

What should I do while the PIP is running?

Build your own record, because the agency is building one too. Keep a daily log of assignments, deadlines, and completed work, and save the emails that show what you were asked to do and when.

If a standard is vague, ask your supervisor in writing what acceptable work looks like and keep the reply. Track whether the promised help actually happens, such as scheduled check-ins or training, since a PIP without real assistance is open to challenge. If a medical condition is affecting your work, you can request a reasonable accommodation under the Rehabilitation Act at any point, including during the plan. Respond to any written feedback in a calm, factual way rather than letting inaccurate notes stand.

What if I think the PIP is discrimination or retaliation?

You can challenge the PIP itself through the EEO process, but you must contact an agency EEO counselor within 45 days of receiving it. The PIP alone is generally not appealable to the MSPB, so waiting for a removal before acting can mean losing the chance to contest the plan.

Timing often matters most here. A PIP issued a few weeks after you filed an EEO complaint, requested an accommodation, or reported wrongdoing deserves a close look. A plan that holds you to standards your coworkers are not held to deserves the same.

When should I contact a Virginia federal employee attorney?

Ideally the week the PIP arrives, while there is still time to shape the record. An attorney can review whether your standards are valid and clearly stated, help you write requests for clarification, and spot a weak pre-PIP record under Santos.

If a proposed removal has already been issued, the reply period is often short. A written and oral reply to the deciding official is your chance to point out gaps before a decision is made. If the removal goes forward, an appeal to the MSPB is generally due within 30 days of the effective date. Remember that removal protections for some positions have been changing in 2025 and 2026, so confirm which rules apply to your role.

Using the PIP period to protect your career

A PIP is where most performance cases are won or lost. Chapter 43 gives the agency a lower burden of proof but strict procedural rules, and Chapter 75 gives it more flexibility in exchange for a heavier burden and penalty review. Knowing which one you are facing tells you where the weak points are. The Mundaca Law Firm represents federal employees across Virginia from our Tysons office, from the first PIP meeting through MSPB appeals. If you have been placed on a performance improvement plan, speak with a Virginia federal employee attorney and schedule a confidential consultation while the opportunity period is still open.