The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN CHENDORAIN, DOCKET NUMBER
Appellant, DC-0432-20-0568-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: October 22, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kristen Farr , Esquire, Washington, D.C., for the appellant.
Richard Johns , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal based on unacceptable performance pursuant to 5 U.S.C.
chapter 43. For the reasons set forth below, we GRANT the petition for review,
VACATE the initial decision, and REMAND the appeal to the Washington
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Regional Office for further adjudication consistent with Santos v. National
Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The agency appointed the appellant to a GS-14 Information Technology
Specialist position in November 2014. Initial Appeal File (IAF), Tab 4 at 12. For
this position, the appellant’s performance was rated in four core competencies,
known as critical elements: (1) communication; (2) customer service;
(3) teamwork; and (4) technical competency. Id. at 63-65. At the end of the 2019
performance year, which ran from October 1, 2018, through September 30, 2019,
his supervisor rated his performance unacceptable in the two critical elements of
communication and teamwork. Id. at 23-29. On November 20, 2019, the agency
issued the appellant a notice of unacceptable performance in those two critical
elements, and it provided him with a 60-day performance improvement plan (PIP)
to demonstrate acceptable performance or be demoted or removed. Id. at 30-36.
The PIP notice set forth the requirements for the appellant to achieve fully
successful performance in the communication and teamwork critical elements at
issue over the duration of the PIP. Id. at 33-35. In addition to general guidance
on those critical elements, the PIP notice also set forth several specific tasks for
the appellant to complete during the PIP. Id.
¶3 Under the communication critical element, the PIP notice set forth three
tasks for the appellant to complete. IAF, Tab 4 at 33-34. Specifically, it required
him to submit two written reports: the first concerning automated testing
software and how it will be utilized by the development operations continuous
integration/continuous development process, and the second concerning an
assessment of the Structured Query Language server accompanied with
recommendations for the Azure cloud. Id. The third task set forth in the PIP
notice under the communication critical element required the appellant to
complete an upgrade of the AdLib server, keeping the team and supervisor
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advised of his plan and progress, and subsequently decommissioning the older,
legacy, AdLib server. Id. at 34. Under the teamwork critical element, the PIP
notice set forth four tasks for the appellant to complete: the completion of the
SharePoint cumulative update, closing out 3 of the 14 open Plans of Action and
Milestones, training the administrative team on how to recover databases using a
particular tool, and reducing all large content databases. Id. at 35.
¶4 Following the conclusion of the PIP, on February 27 2020, the appellant’s
supervisor informed the appellant that his performance in the critical elements of
communication and teamwork remained unacceptable, and he proposed the
appellant’s removal. IAF, Tab 4 at 15-22. Following the appellant’s written and
oral responses, the deciding official issued a final decision sustaining the
proposed removal and removing the appellant from Federal service, effective
April 1, 2020. Id. at 48-62.
¶5 The appellant appealed his removal, arguing that his performance was
acceptable and that the removal action was the result of age discrimination,
reprisal for reporting alleged discrimination, and harmful error. IAF, Tab 1 at 6.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision. IAF, Tab 19, Initial Decision (ID). She found that the agency
proved the necessary elements, as they existed at the time, to support a chapter 43
performance-based removal by substantial evidence. ID at 9-25. She also
concluded that the appellant failed to prove any of his affirmative defenses. 2 ID
at 25-27. Accordingly, she affirmed the appellant’s removal. ID at 1, 27.
¶6 The appellant has filed a petition for review in which he reasserts his
arguments from below that the agency failed to afford him a reasonable
opportunity to improve his performance and failed to prove that his performance
2
The appellant does not challenge on review any of the administrative judge’s findings
regarding his affirmative defenses. We have reviewed the record and conclude that
these findings are sound. We discern no basis to disturb them. See 5 C.F.R. § 1201.115
(“The Board normally will consider only issues raised in a timely filed petition or cross
petition for review.”).
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was unacceptable. Petition for Review (PFR) File, Tab 1 at 7-11, 20-29. In this
regard, he asserts that the administrative judge erred in her findings of fact and
credibility determinations. Id. at 11-20. The agency has filed a response to the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 When the initial decision was issued, the Board’s case law provided that, in
a performance-based action under 5 U.S.C. chapter 43, an agency must establish
by substantial evidence that: (1) the Office of Personnel Management (OPM)
approved its performance management system; (2) the agency communicated to
the appellant the performance standards and critical elements of her position;
(3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(4) the agency warned the appellant of the inadequacies of his performance during
the appraisal period and gave him a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 13; White v
Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013); Lee v.
Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). As noted in the
initial decision, the parties stipulated that the agency met its burden of proof
regarding elements 1-3. 3 ID at 9; IAF, Tab 15 at 3-4.
3
The Board’s regulations provide that the parties may stipulate to any matter of fact
and that such stipulations satisfy a party’s burden of proving the fact alleged. See
5 C.F.R. § 1201.63; see also Anderson v. Tennessee Valley Authority, 77 M.S.P.R. 271,
275 (1998). Whether OPM approved the appraisal system and whether the performance
standards were communicated to the appellant are pure questions of fact and were, thus,
properly stipulated to, and the administrative judge properly relied on the stipulations.
However, stipulations concerning matters of mixed fact and law are not binding on the
Board, and the Board must resolve for itself whether the agency proved such matters.
See Anderson, 77 M.S.P.R. at 275. Here, the issue of whether the appellant’s
performance standards are valid constitutes a matter of mixed fact and law. Thus, we
briefly address this element here. To be valid, performance standards must, to the
maximum extent feasible, permit the accurate appraisal of performance based on
objective criteria, and must be reasonable, realistic, attainable, and clearly stated in
writing. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 21 (2013). They
must also be specific enough to provide an employee with a firm benchmark toward
5
¶8 After review of the record and consideration of the appellant’s arguments,
we discern no basis to disturb the administrative judge’s finding that the agency
proved the elements required to establish a chapter 43 action under the law when
the initial decision was issued. Specifically, the appellant argues, among other
things, that the administrative judge failed to consider the testimony of three of
his coworkers who had first-hand knowledge of his ability to communicate and
work with the team, skills implicated by the critical elements highlighted in the
PIP notice. PFR File, Tab 1 at 14-20. The appellant claims that these three
witnesses “paint a very different picture” of him “that is more closely aligned to
the documentary evidence in the record.” Id. at 20. However, he cites little
documentary evidence to support his claim, and he does not directly address or
identify how these testimonies contradict the well-explained findings of the
administrative judge on the merits of the agency’s evidence of his performance.
ID at 11-22; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (2002);
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board
will not disturb an administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987) (same). We therefore discern no error by the
administrative judge in this regard.
which to aim his performance and must be sufficiently precise to invoke general
consensus as to their meaning and content. Id. Both the critical elements of
communication and teamwork explain by what measures they are evaluated, and they
clearly set forth benchmarks for how to meet differing ratings of performance. IAF,
Tab 4 at 64-65. The record supports the stipulation that the performance standards are
valid. Although the appellant appears to argue for the first time on review that the
performance standards as set forth specifically in the PIP notice are not valid because
they are “unreasonably high,” PFR File, Tab 1 at 10, we construe this argument as a
disagreement concerning whether he achieved acceptable performance, which is a
different discussion than the validity of the performance standard by which he was
evaluated.
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Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
¶9 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings, we nonetheless must remand this appeal for
another reason. As noted above, during the pendency of the petition for review in
this case, the Federal Circuit issued Santos, 990 F.3d at 1360-63, in which it held
that, in addition to the five elements of the agency’s case set forth above, the
agency must also justify the initiation of a PIP by proving by substantial evidence
that the employee’s performance was unacceptable prior to the PIP. The Federal
Circuit’s decision in Santos applies to all pending cases, including this one,
regardless of when the events took place. Lee, 2022 MSPB 11, ¶ 16.
¶10 We observe that the record in this case already contains evidence suggesting
that the appellant’s performance prior to the initiation of the PIP was
unacceptable. For instance, in December 2017, the appellant’s supervisor issued
him a written counseling for inappropriate conduct towards fellow employees and
contractors concerning three incidents: his failure to participate or give notice
that he was unable to participate in a risk assessment phone call and two instances
of unprofessional responses to emails. IAF, Tab 4 at 30-31; Tab 11 at 65-66.
Additionally, in April 2019, the appellant’s supervisor issued him an oral
warning, confirmed in writing, concerning several more alleged instances when
his performance, among other things, “exhibited gross deficiencies” in the critical
elements of communication and teamwork. IAF, Tab 4 at 30-31; Tab 11 at 71-74.
Further, as stated above, the appellant was also rated unacceptable in the critical
elements of communication and teamwork in his 2019 performance evaluation.
IAF, Tab 4 at 24-25. On the other hand, however, the record also contains
evidence that the appellant received a within grade increase—effective
November 10, 2019—which was after the 2019 performance evaluation but before
the implementation of the PIP. IAF, Tab 1 at 8. The documentation in support of
that action states that the appellant’s “work performance is at an acceptable level
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of competence.” Id. To resolve this issue, we remand the appeal to give the
parties the opportunity to present argument and additional evidence on whether
the appellant’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements. See Lee, 2020 MSPB 11, ¶¶ 15-17.
On remand, the administrative judge shall accept argument and evidence on this
issue and shall hold a supplemental hearing if appropriate. Id., ¶ 17.
¶11 The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate in the remand initial
decision her prior findings on the other elements of the agency’s case, and the
appellant’s affirmative defenses. See id. 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, the AJ 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).
ORDER
¶12 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.