The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAZEL BROWN, DOCKET NUMBER
Appellant, DC-0432-19-0479-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: June 28, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Carson Bridges and Tyler Sroufe , Dallas, Texas, for the appellant.
Christopher Hawthorne , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her for unacceptable performance pursuant
to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition
for review. We MODIFY the initial decision to: (1) correct misstatements
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regarding the agency’s burden of proof; (2) clarify the legal standard applicable
to the appellant’s claim of failure to accommodate disability discrimination;
(3) supplement the initial decision to address the appellant’s claim of disparate
treatment disability discrimination; and (4) clarify the legal standard applicable to
the appellant’s claim of retaliation for protected equal opportunity employment
(EEO) activity. We REMAND the matter to the Washington Regional Office for
further adjudication consistent with the U.S. Court of Appeals for the Federal
Circuit’s decision in Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to correct misstatements regarding the agency’s
burden of proof. 2
¶2 Although the administrative judge correctly stated that the agency’s burden
of proof was substantial evidence, 3 Initial Appeal File (IAF), Tab 25, Initial
Decision (ID) at 3-5, portions of her initial decision misidentified the applicable
burden as preponderant evidence, 4 ID at 14-16, 18, 20, 22, 32. However, a
different outcome is not warranted. Indeed, even assuming the administrative
judge misapplied the burden of proof, the agency was subjected to a higher
standard; thus, the appellant’s substantive rights were not prejudiced. See Salter
v. Department of the Treasury, 92 M.S.P.R. 355, ¶ 12 (2002) (explaining that
actions taken under chapter 43 are subject to the lower substantial evidence
standard rather than the higher preponderant evidence standard); see also Panter
v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an
2
We have considered the appellant’s arguments on review; however, we find that none
provide a basis to disturb the initial decision. Petition for Review File, Tab 3 at 5-18.
3
Substantial evidence is the “degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
4
Preponderant evidence is the “degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
3
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
We modify the initial decision to clarify the legal standard applicable to the
appellant’s affirmative defense of failure to accommodate disability
discrimination.
¶3 An agency is required to make reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that the accommodation would cause an
undue hardship on its business operations. Miller v. Department of the Army,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). An appellant may
establish a disability discrimination claim based on failure to accommodate by
showing by preponderant evidence that: (1) she is an individual with a disability
as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a
disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to
provide her a reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13.
¶4 Here, in analyzing the appellant’s claim that the agency failed to provide
her with a reasonable accommodation, the administrative judge erroneously
referenced the legal standard set forth in the Board’s decision in Southerland v.
Department of Defense, 119 M.S.P.R. 566, ¶ 23 (2013), overruled by Pridgen v.
Office of Management and Budget, 2022 MSPB 31. ID at 37-38. However,
because the appellant failed to show that she is a qualified individual with a
disability, ID at 38, 5 a different outcome is not warranted, see Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶ 28 (explaining that a claim
5
The administrative judge stated, among other things, the following: “[the appellant]
presented no detailed information regarding her conditions nor did she provide any
medical documentation sufficient to conclude that she is a qualified disabled person.”
ID at 38. She also reasoned that the appellant “offered no evidence or argument that
she requested a reasonable accommodation to enable her to complete the essential
duties of her position.” Id. To the extent the administrative judge did not find that the
appellant failed to show by preponderant evidence that she is a qualified individual with
a disability as defined by 29 C.F.R. § 1630.2(m), we supplement her analysis to make
such a finding.
4
of disability discrimination based on an agency’s failure to reasonably
accommodate that disability requires that the individual be a qualified individual
with a disability); see also Miller, 121 M.S.P.R. 189, ¶ 13.
We modify the initial decision to address the appellant’s claim of disparate
treatment disability discrimination.
¶5 Although the majority of the appellant’s allegations of disability
discrimination were tethered to her claim that the agency failed to provide her
with a reasonable accommodation, some of her arguments before the
administrative judge could reasonably be construed as claims of disparate
treatment disability discrimination. E.g., IAF, Tab 21 at 28-29. Because the
administrative judge did not explicitly address this theory of discrimination in her
initial decision and the factual record is fully developed on the issue, we
supplement the initial decision to address this claim.
¶6 To prevail in a claim of disparate treatment disability discrimination, an
appellant must show that her disability was a motivating factor in the agency’s
decision to take a personnel action against her. Pridgen, 2022 MSPB 31, ¶ 40.
Here, we find that the appellant failed to show by preponderant evidence that her
alleged disability was a motivating factor in the contested personnel action.
Indeed, apart from vague allegations, the record is devoid of evidence suggesting
that the appellant’s alleged disability precipitated her removal. Moreover, insofar
as the appellant failed to show that she is a qualified individual with a disability,
her claim of disparate treatment disability discrimination necessarily fails, see
Haas, 2022 MSPB 36, ¶ 28.
We modify the initial decision to clarify the legal standard applicable to the
appellant’s affirmative defense of EEO retaliation.
¶7 In finding that the appellant failed to prove her affirmative defense of
retaliation for engaging in protected EEO activity, i.e., filing an EEO complaint
alleging disability discrimination, the administrative judge referenced the legal
standard set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015),
5
overruled in part by Pridgen, 2022 MSPB 31. ID at 40. Relying on this
standard, she found that the appellant had presented “no evidence to support a
finding that the agency had a retaliatory motive in proposing and affirming [her]
removal.” ID at 41. Subsequent to the issuance of the initial decision, the Board
clarified that an appellant alleging retaliation for activity protected under the
Rehabilitation Act must prove that such retaliation was a “but-for” cause of the
agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 44-46. Here, because we agree that
the appellant failed to show that her protected EEO activity was a motivating
factor in her removal, ID at 41, the appellant’s claim necessarily fails under the
more stringent “but-for” framework, see Desjardin v. U.S. Postal Service,
2023 MSPB 6, ¶ 33. 6
Remand is required in light of Santos .
¶8 In affirming the agency’s performance-based removal action, the
administrative judge correctly applied the Board’s precedent setting forth the
relevant legal standard for actions under chapter 43 at the time she issued the
initial decision. ID at 3-32. Subsequent to the initial decision, however, the
Federal Circuit held for the first time that, to support an adverse action under
chapter 43, an agency “must justify institution of a PIP” by showing that the
employee’s performance was unacceptable before the PIP. Santos, 990 F.3d
at 1360-61. Therefore, to defend an action under chapter 43, an agency must now
also prove by substantial evidence that the appellant’s performance during the
appraisal period prior to the PIP was unacceptable in one or more critical
elements. See Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 15. The
Federal Circuit’s decision in Santos applies to all pending cases, including this
one, regardless of when the events took place. Id., ¶ 16. The parties here did not
6
Although the administrative judge’s analysis referenced direct evidence and types of
circumstantial evidence, we find no indication that she disregarded any record evidence
because of its direct or circumstantial nature. ID at 38, 40; see Gardner v. Department
of Veterans Affairs, 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen, 2022 MSPB
31.
6
have an opportunity before the administrative judge to address the modified legal
standard in light of Santos. We therefore remand this case for further
adjudication of the appellant’s removal under the standard set forth in Santos.
See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings
under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos).
¶9 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the administrative judge’s analysis of the appellant’s
affirmative defenses, she should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests).
7
ORDER
¶10 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.