Opinion

Latisha Zepeda v. Nuclear Regulatory Commission

2024 MSPB 14

Court: Merit Systems Protection Board
Filed: Oct 30, 2024
Status: Published
Cited by: 4 cases
Authority: More cited than 63.4%

explaining that for status-based discrimination claims, in order to obtain full relief, an appellant must show that discrimination or retaliation was the “but-for” cause of the personnel action

How later courts described this case

explaining that for status-based discrimination claims, in order to obtain full relief, an appellant must show that discrimination or retaliation was the “but-for” cause of the personnel action

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 14

Docket No. DA-0432-19-0539-I-1

Latisha A. Zepeda,

Appellant,

Nuclear Regulatory Commission,

Agency.

October 30, 2024

Kevin C. Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant.

Michael Gartman , Esquire, and Vinh Hoang , Esquire, Rockville, Maryland,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

OPINION AND ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which reversed the appellant’s

performance-based removal but denied her affirmative defenses. For the reasons

discussed below, we DENY the petition for review and the cross petition for

review. Except as expressly MODIFIED to incorporate the appropriate analytical

framework for the appellant’s disability discrimination claim, we AFFIRM the

initial decision.

BACKGROUND

¶2 The following facts, as further detailed in the initial decision, are not

disputed. The appellant has a lengthy history of Federal employment, most

recently as a Special Agent for the agency’s Office of Investigations. Initial

Appeal File (IAF), Tab 1 at 1, Tab 28 at 4, Tab 51, Initial Decision (ID) at 3. In

that position, her permanent first-line supervisor was the Special Agent in Charge

(SAIC). IAF, Tab 28 at 4; ID at 3. However, an Acting SAIC supervised the

appellant from March to June 2018. IAF, Tab 28 at 4; ID at 4. During that

period, the agency issued a performance improvement requirements memorandum

(PIRM), which placed the appellant under a performance improvement period

(PIP) based on unacceptable performance in three critical elements: (1) planning

and preparation for assigned investigations; (2) conduct of investigations/assists

to staff; and (3) preparation of reports of investigation and assists to staff closure

memoranda. IAF, Tab 19 at 35-46; ID at 4. Upon expiration of the PIP, the

agency proposed the appellant’s removal for unacceptable performance in the

same three critical elements. IAF, Tab 15 at 79-85; ID at 4. After the appellant

responded to the proposal, the deciding official sustained her removal, effective

October 2018. IAF, Tab 18 at 4-12; ID at 4-5.

¶3 The appellant unsuccessfully challenged her removal in a formal equal

employment opportunity (EEO) complaint with the agency. IAF, Tab 5 at 6-32;

ID at 5 n.5. Upon receipt of the final agency decision, she filed the instant appeal

to challenge her performance-based removal and raise several affirmative

defenses. IAF, Tab 1 at 1, Tab 5 at 6.

¶4 The administrative judge developed the record and held a 2-day hearing

before reversing the appellant’s removal based on the agency’s failure to prove

that its performance standards were valid. ID at 3, 8-12. The administrative

judge also considered but rejected the appellant’s claims of a due process

violation, ID at 5-7; discrimination based on race, sex, and national origin, along

with associated EEO reprisal, ID at 12-21; and disability discrimination, ID

at 22-26.

¶5 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. The appellant has filed a response, PFR File, Tab 3, and the agency has

replied, PFR File, Tab 5. The appellant has also filed a cross petition for review,

PFR File, Tab 3, to which the agency has responded, PFR File, Tab 6.

ANALYSIS

The agency failed to prove that its performance standards were valid.

¶6 At the time the initial decision was issued, the Board’s case law stated that,

to prevail in an appeal of a performance-based removal under chapter 43, the

agency must establish the following by substantial evidence: 1 (1) the Office of

Personnel Management (OPM) approved its performance appraisal system and

any significant changes thereto; (2) the agency communicated to the appellant the

performance standards and critical elements of her position; (3) the appellant’s

performance standards were valid under 5 U.S.C. § 4302(b)(1); (4) the agency

warned the appellant of the inadequacies of her performance during the appraisal

period and gave her a reasonable opportunity to demonstrate acceptable

performance; and (5) the appellant’s performance remained unacceptable in one

or more of the critical elements for which she was provided an opportunity to

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).

demonstrate acceptable performance. 2 Lee v. Environmental Protection Agency,

115 M.S.P.R. 533, ¶ 5 (2010). The administrative judge applied this standard and

found that the agency proved the first two elements, ID at 7-8, but failed to prove

the third—the validity of its performance standards, ID at 8-12. Therefore, the

administrative judge reversed the appellant’s removal without addressing the

remaining elements. Since that third element is the crux of the arguments on

review, our analysis will be similarly focused.

The performance standards in the appellant’s performance plan were

invalid.

¶7 Under certain performance appraisal systems, including the one at issue in

this appeal, performance of a critical element may fall between “fully successful”

and “unacceptable.” Jackson-Francis v. Office of Government Ethics,

103 M.S.P.R. 183, ¶ 6 (2006). However, performance falling between those

levels, e.g., “minimally successful” performance, would not support removal

under chapter 43; only “unacceptable” performance is actionable under the

statute. Id., ¶¶ 6-7. Performance standards are not valid if they do not set forth

the minimum level of performance that an employee must achieve to avoid

removal for unacceptable performance under chapter 43. Id., ¶ 8. Absent valid

performance standards, the Board cannot consider charged performance

deficiencies. Id.

¶8 As the administrative judge noted, the appellant’s performance plan

included a five-tier rating system that consisted of unacceptable, minimally

During the pendency of the petition for review in this case, the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) held in Santos v. National Aeronautics and

Space Administration, 990 F.3d 1355, 1360-61, 1363 (Fed. Cir. 2021), that in addition

to the five elements of the agency’s case set forth above, the agency must also “justify

the institution of a PIP” by proving by “substantial evidence that the employee’s

unacceptable performance ‘continued’—i.e., it was unacceptable before 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 v. Department of Veterans Affairs,

2022 MSPB 11, ¶ 16. However, given our disposition, we need not remand for

adjudication of the element described in Santos.

successful, fully successful, excellent, and outstanding performance. ID at 3-4;

IAF, Tab 19 at 47-57. However, the plan only defined fully successful

performance for each critical element; it did not define minimally successful

performance that would have allowed the appellant to avoid removal under

chapter 43. ID at 8; IAF, Tab 19 at 47-57. Therefore, the administrative judge

found that the standards provided in the appellant’s performance plan were

facially invalid. ID at 8-9.

¶9 On review, the agency disagrees that the performance standards provided in

the appellant’s performance plan were facially invalid. PFR File, Tab 1 at 7-9.

According to the agency, it only needed to define fully successful performance.

Id. at 7-8 (citing, e.g., 5 C.F.R. §§ 430.206(b)(8)(i)(B), 430.208(d)(1)). This

argument misses the mark.

¶10 Although the regulations and guidance the agency cites only require that its

performance plan establish the standard for “fully successful” performance, an

agency’s obligations do not necessarily end there if it wishes to pursue removal

under the chapter 43 statutory scheme. Compare 5 C.F.R. § 430.206(b)(8)(i)(B)

(requiring that a performance plan establish fully successful performance), with

Sherrell v. Department of the Air Force, 47 M.S.P.R. 534, 539 (1991)

(recognizing this requirement in a prior version of the regulation, but also that an

agency’s performance standards are invalid if they require projection of more

than one level to determine a specific level of performance), aff’d, 956 F.2d 1174

(Fed. Cir. 1992) (Table). Performance standards “must set forth in objective

terms the minimum level of performance which an employee must achieve to

avoid, inter alia, removal for ‘unacceptable performance’” under chapter 43.

Eibel v. Department of the Navy, 857 F.2d 1439, 1441 (Fed. Cir. 1988). A single

standard in a five-tier performance plan violates the statutory requirement of

objectivity because it requires extrapolation more than one level above and below

the written standard, rendering the standard facially invalid. Henderson v.

National Aeronautics and Space Administration , 116 M.S.P.R. 96, ¶ 13 (2011).

Accordingly, the standards in the appellant’s performance plan, which defined

fully successful performance but not minimally successful performance, were not

valid for purposes of this removal action.

The performance standards in the appellant’s PIRM, or PIP notice, were

also invalid.

¶11 While the appellant’s performance plan did not suffice for meeting the

agency’s burden of proving that its performance standards were valid under

5 U.S.C. § 4302, our analysis does not stop there. Facially invalid standards such

as the ones at issue in this appeal may be cured through subsequent

communications to the employee. Henderson, 116 M.S.P.R. 96, ¶ 13. An agency

may cure otherwise fatal defects in the development and communication of

performance standards by communicating sufficient information regarding

performance requirements at the beginning of, and even during, the PIP. Id.,

¶ 18. However, at whatever point in the process they are communicated,

standards that fail to inform an employee of what is necessary to obtain an

acceptable level of performance and instead describe what she should not do are

invalid backwards standards. Van Prichard v. Department of Defense,

117 M.S.P.R. 88, ¶ 18 (2011), aff’d per curiam, 484 F. App’x 489 (Fed. Cir.

2012); see Eibel, 857 F.2d at 1441-42 (finding that invalid backwards standards

read more like unacceptable standards, rather than acceptable ones, and literally

can be met by doing nothing); Henderson, 116 M.S.P.R. 96, ¶ 12 n.3 (explaining

that backwards standards are ones that identify unacceptable performance, rather

than acceptable performance).

¶12 The administrative judge noted that the PIRM, or PIP notice, did elaborate

on the deficient performance plan by providing a definition of minimally

successful performance for each standard underlying the three critical elements at

issue in this removal action. ID at 9-10; IAF, Tab 19 at 35, 39-43. The

administrative judge discussed just the first critical element, “planning of and

preparation for assigned investigations,” but explained that the measures were

similar for the others. ID at 9-10.

¶13 For each of the critical elements at issue in this appeal, including the first,

the appellant’s performance was measured by four criteria: quality, supervision

needed/independence, timeliness, and quantity. IAF, Tab 19 at 39-40. However,

for the “quality” criterion under that critical element, the PIRM provided that “[a]

rating of minimally successful means that . . . components of assignment

investigations were of less than good quality.” Id. at 39. The “supervision”

criterion described minimally successful performance as that which included

“more than normal discussion with the [SAIC].” Id. The “quantity” criterion

described minimally successful performance as “a less than expected quantity of

planning and preparation activities . . . completed within the time frames set

forth.” Id. at 40.

¶14 Using the “quantity” criterion as an example, the administrative judge found

that it described unacceptable performance, rather than minimally acceptable

performance, because its requirement that the appellant produce “a less than

expected quantity” could be satisfied by producing nothing at all. ID at 10. The

administrative judge determined that each of these criteria were backwards

standards, and they were therefore invalid. ID at 10-12; see Eibel, 857 F.2d

at 1441-42; Van Prichard, 117 M.S.P.R. 88, ¶ 18; Henderson, 116 M.S.P.R. 96,

¶ 12 n.3.

¶15 The final criterion under each critical element, timeliness, was notably

different than the others. Again, using the first critical element as an example,

the PIRM indicated that minimally successful performance meant that “generally

assigned investigative plans are completed on schedule within the first 15-30 days

of the assignment; however, occasional delays that do not adversely affect

Agency operations or schedules in submitting non-complex assignments are

acceptable.” IAF, Tab 19 at 40. The administrative judge found that the agency’s

timeliness criteria were not backwards on their face, but they were nevertheless

invalid because they were inextricably intertwined with the other three backwards

standards included in each critical element. ID at 11-12. She explained that the

Acting SAIC who oversaw the appellant’s PIP and proposed her removal

confirmed that he did not consider the appellant’s work timely if it was lacking in

quality or required excessive supervision. Id.

¶16 On review, the agency argues that the administrative judge erred by finding

its quality, supervision needed, and quantity standards to be backwards. PFR

File, Tab 1 at 10. The agency contends that the administrative judge improperly

considered isolated phrases in the PIRM rather than viewing the phrases in

context. Id. We disagree.

¶17 The appellant’s performance plan and her PIRM do not explain what was

necessary for the appellant to be rated minimally successful and avoid the

removal action before us. IAF, Tab 19 at 35-58. Once again, we will use the first

critical element and the underlying “quantity” criterion as an example. The

performance plan describes the first critical element, and it describes the

underlying “quantity” criterion, but the performance plan only defines fully

successful performance for the same. Id. at 49. Specifically, the performance

plan provides as follows:

A rating of fully successful means that the expected quantity of

planning and preparation activities is completed within the time

frames set forth in the [Office of Investigation’s] performance

measures. The complexity and priority of cases are considered in

determining what quantity of work is expected. Generally, the

planning and preparation activities are completed upon assignment of

an investigation with a normal level of discussion with the Special

Agent in Charge or Task Leader. Note that for this grade level a

minimal level of assistance from the Special Agent in Charge or Task

Leader and monthly status checks are expected.

Id. (emphasis added).

¶18 The PIRM contains the same description for the first critical element and

the same description for the underlying “quantity” criterion, but the PIRM then

provides:

A rating of minimally successful means that a less than expected

quantity of planning and preparation activities is completed within

the time frames set forth in the [Office of Investigation’s]

performance measures. The complexity and priority of cases are

considered in determining what quantity of work is expected.

Generally, the planning and preparation activities are completed

upon assignment of an investigation with more than normal

discussion with the Special Agent in Charge or Task leader. Note

that for this grade level a minimal level of assistance from the

Special Agent in Charge or Task leader and monthly status checks

are expected.

Id. at 40 (emphasis added).

¶19 Although the agency argues that the additional context shows that its

performance standards were valid, we find that the additional context only

illuminates the agency’s error. Read together, the performance plan provides that

a fully successful rating requires “the expected quantity,” while the PIRM

provides that a minimally successful rating requires “a less than expected

quantity.” Id. at 40, 49. However, there is no other difference between the

ratings described in those two documents, and neither differentiates between

minimally successful and unacceptable performance. In other words, the agency

failed to give the appellant an indication of how much “less than expected” she

could produce in terms of quantity while still avoiding an unacceptable rating that

would lead to her removal.

¶20 With its argument on review, the agency uses a different example—the third

critical element, which is “preparation of reports of investigation and assists to

staff closure memoranda.” PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. In

particular, the agency recounts the “quality” criterion, for which the PIRM

provided as follows:

A rating of minimally successful means that closure documents are

of a less than expected quality in terms of being accurate, clear,

organized, concise, and grammatically correct. The written product

adequately supports and leads to logical conclusions and effectively

communicates the intended information. It complies with

Investigative Procedures Manual and Investigative Guidance

Memoranda report writing requirements.

PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. The agency suggests that the latter

phrases cure or at least improve on the “less than expected” language, which is

more subjective. PFR File, Tab 1 at 12-13. But this argument seems to overlook

the fact that the latter phrases are also contained, verbatim, in the performance

plan’s explanation of fully successful performance. The only difference between

the agency’s explanation of its performance standards for this metric is that “fully

successful means that generally the closure documents are accurate, clear,

organized, concise, and grammatically correct,” IAF, Tab 19 at 2, while

“minimally successful means closure documents are of a less than expected

quality in terms of being accurate, clear, organized, concise, and grammatically

correct,” id. at 42.

¶21 The agency’s standards for minimally successful performance are

indistinguishable from comparable standards that we have found to be

impermissibly backwards and invalid. For example, in Van Prichard, the Board

considered the following language to describe marginal performance, i.e., the

minimal level of performance needed in that case to avoid removal under

chapter 43: “less than Fully Successful and supervisory guidance and assistance

is more than normally required.” Van Prichard, 117 M.S.P.R. 88, ¶ 17. The

Board explained that although the standard in that case was written at the

“minimally successful” level, it was backwards and invalid because the standard

failed to inform the employee of what was necessary to obtain an acceptable level

of performance. Id., ¶ 18. As a practical matter, the agency in Van Prichard

failed to distinguish between minimally successful and unacceptable performance.

Id. The same is true of the agency’s performance standards in this case.

¶22 The agency separately argues that although language such as “less than

expected” is somewhat subjective, that was permissible because of the nature of

the appellant’s work. PFR File, Tab 1 at 13. We disagree. The fact that the

performance standard may call for a certain amount of subjective judgment on the

part of the employee’s supervisor does not automatically invalidate it.

Henderson, 116 M.S.P.R. 96, ¶ 23. However, the performance standards must be

sufficiently precise and specific as to invoke a general consensus as to its

meaning and content and provide a firm benchmark toward which the employee

may aim her performance. Id. Here, the agency’s explanation of minimally

successful performance fails to do so. The agency did not give the appellant any

indication, for example, how much “less than good” her quality could be or “less

than expected” her quantity could be while still avoiding unacceptable

performance that would lead to her removal.

¶23 Next, the agency argues about the timeliness standards. PFR File, Tab 1

at 14. Once again, the administrative judge did not find the timeliness standards

backwards on their face, but she found them inextricably intertwined with other

standards that were. Supra ¶ 15. The agency contends that there is no

requirement that performance standards be entirely discrete or independent from

one another. PFR File, Tab 1 at 15-16 (referencing, e.g., Mendez v. Department

of the Air Force, 62 M.S.P.R. 579 (1994), overruled on other grounds by Jackson

v. Department of Veterans Affairs, 97 M.S.P.R. 13 (2004)). But the

administrative judge did not find the timeliness standard invalid because it was

related to the other standards; she found it invalid because the Acting SAIC

acknowledged that he did not consider the appellant’s work timely if it was

lacking as to the backwards standards, such as those concerning quality and

supervision required. ID at 11. The agency has not presented any persuasive

argument to the contrary, and it has not shown that the administrative judge erred

by finding the timeliness standards invalid as a result.

The agency has not shown that it cured its invalid performance standards.

¶24 The agency’s final assertion about the validity of its performance standards

is that any deficiencies were cured during the PIP. PFR File, Tab 1 at 16-21.

This argument is twofold. First, the agency contends that precedent from the

Board and the U.S. Court of Appeals for the Federal Circuit demonstrates that its

invalid standards could be cured rather than entirely rewritten. Id. at 16-19.

Second, the agency contends that the standards at issue in this appeal were

sufficiently cured during the PIP. Id. at 19-21.

¶25 As stated above, the Board has recognized that an agency may cure

otherwise fatal defects in the development and communication of performance

standards by communicating sufficient information regarding performance

requirements at the beginning of, and even during, the PIP. Henderson,

116 M.S.P.R. 96, ¶ 18. However, Henderson and many other cases like it

involved standards that were invalid for reasons different than the agency’s

backwards standards in this appeal. E.g., id., ¶¶ 16-21 (considering whether the

agency cured performance standards that included five possible ratings and set

forth what was required to meet expectations, but failed to set forth what was

required to meet the lower rating that would still preclude removal); Thompson v.

Department of the Army, 89 M.S.P.R. 188, ¶¶ 18-19 (2001) (considering whether

the agency cured performance standards that were absolute, i.e., a single

performance error warranted an unacceptable rating).

¶26 In Eibel, our reviewing court considered backwards standards such as the

ones currently before us. Eibel, 857 F.2d at 1441-42. The court explained that

the backwards standards in Eibel were not the kind that “inherently require a

degree of subjective judgment by the supervisor [and] may be ‘fleshed out’ and

‘clarified’ during counseling.” Id. at 1443. Instead, the court explained that the

backwards standards in that appeal “would have to be totally rewritten, not

supplemented.” Id. In several subsequent cases, the Board cited Eibel and

similarly found that agencies’ backwards performance standards would have to be

entirely rewritten, not just fleshed out. Jackson-Francis, 103 M.S.P.R. 183, ¶ 10;

Burnett v. Department of Health and Human Services , 51 M.S.P.R. 615, 617-18

(1991); Ortiz v. Department of Justice, 46 M.S.P.R. 692, 695 (1991). Although

the Board has entertained the idea of an invalid backwards standard being cured,

we found no example of an agency doing so. 3 Van Prichard, 117 M.S.P.R. 88,

¶ 18 (finding that the agency’s standards were backwards and indicating that the

agency did not identify anything in the record that cured the deficiency); Ortiz,

46 M.S.P.R. at 696 (finding that, to the extent the agency could have clarified its

backwards standards, it failed to do so).

¶27 Turning back to the facts of this appeal, we find no basis for concluding that

the agency’s backwards performance standards, which needed more than simple

fleshing out, were entirely rewritten or otherwise cured. While arguing to the

contrary, the agency has once again relied on the language of the PIRM, asserting

that it provided sufficient content to cure any defect. PFR File, Tab 1 at 16-17,

19 (referencing IAF, Tab 19 at 35-46). But, for the reasons discussed above, we

disagree. The PIRM provided numerous examples of the appellant’s unacceptable

performance, IAF, Tab 19 at 36-38, and then provided backwards standards for

minimally successful performance, id. at 39-43. We recognize that the PIRM

went on to describe examples of the appellant’s “typical duties and the activities

The agency has cited three nonprecedential cases—two from the Federal Circuit and

one from a district court—to assert that backwards performance standards can be cured

without being rewritten. PFR File, Tab 1 at 19. However, two of those cases involved

standards that were not backwards, Thompson v. Department of the Navy, 84 F. App’x

61, 63-64 (Fed. Cir. 2003); Gallegos v. White, No. CIV-O3-384, 2004 WL 7337514,

at *5 (D.N.M. Oct. 6, 2004), and the third involved a two-paragraph opinion upholding

an employee’s chapter 43 removal without detailing the performance standards at issue,

except to describe them as “poorly written” and “partially backward,” but understood by

the parties, Sesko v. Department of the Navy, 878 F.2d 1444 (Fed. Cir. 1989) (Table).

necessary to demonstrate minimally successful performance.” Id. at 43-45.

However, those examples are little more than a list of duties. While testifying,

the Acting SAIC simply described them as the tasks in the appellant’s workload.

IAF, Tab 38, Hearing Recording, Day 1, Part 2 at 28:00-30:00 (testimony of

Acting SAIC). They do not “set forth in objective terms the minimum level of

performance which an employee must achieve” regarding the agency’s quality,

supervision needed, and quantity standards for the relevant critical elements. See

Eibel, 857 F.2d at 1441.

¶28 The agency has also referenced communications during the PIP between the

appellant and the Acting SAIC. PFR File, Tab 1 at 17, 20-21 (referencing, e.g.,

IAF, Tab 19 at 12-33). It highlighted two notations, in particular. The first was

the Acting SAIC’s handwritten comment in the margin of a document the

appellant produced, where he stated, “We need to show what process [subject]

used with his records and clearly and concisely identify a sub[stantiate] or no

sub[stantiate] call. Again, if you have questions ask.” PFR File, Tab 1 at 20

(referencing IAF, Tab 35 at 56). The second is a single comment within the

Acting SAIC’s record of meetings he had with the appellant during the PIP, in

which he stated that “it is an expectation per your elements and standards defined

under critical element 1 that you are able to identify and develop your own steps

toward proper planning and preparation of your work to demonstrate that you are

capable at the minimally successful level.” PFR File, Tab 1 at 20 (referencing

IAF, Tab 19 at 22). Although the evidence cited shows that the agency

continuously warned the appellant that her performance was unacceptable and

provided some limited instruction for improvement during the PIP, it does not

rewrite or otherwise cure the agency’s backwards performance standards.

Because the agency has failed to establish any basis for us to overturn the

administrative judge’s decision and find that the agency proved the validity of its

performance standards, we need not consider the parties’ competing arguments

about the remainder of the agency’s burden. PFR File, Tab 1 at 22-28, Tab 3

at 3-21, Tab 5 at 5-13.

The appellant did not prove her affirmative defenses.

¶29 The administrative judge considered, but rejected, the appellant’s claims of

a due process violation, ID at 5-7, discrimination based on race, sex, and national

origin, along with associated EEO reprisal, ID at 12-21, and disability

discrimination, ID at 22-26. In her cross petition for review, the appellant

reasserts only her claims of race discrimination, sex discrimination, and EEO

reprisal. PFR File, Tab 3 at 21-24.

¶30 Concerning the Title VII discrimination and EEO reprisal claims that the

appellant reasserts on review, the administrative judge identified and applied the

standard set forth in Savage v. Department of the Army, 122 M.S.P.R. 612

¶¶ 41-42, 51 (2015), as clarified by Gardner v. Department of Veterans Affairs ,

123 M.S.P.R. 647 (2016). ID at 15-17. Under that standard, when an appellant

asserted an affirmative defense of discrimination or retaliation under 42 U.S.C.

§ 2000e-16, the Board would first inquire whether she had shown by preponderant

evidence that the prohibited consideration was a motivating factor in the

contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing was

sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby

committing a prohibited personnel practice under 5 U.S.C.

§ 2302(b)(1). Id. If the appellant met her burden, the Board then would inquire

whether the agency had shown by preponderant evidence that the action was not

based on the prohibited personnel practice, i.e., it still would have taken the

contested action absent the alleged discriminatory or retaliatory motive. Id. If

the Board found that the agency made that showing, its violation of 42 U.S.C.

§ 2000e-16 would not require reversing the action. Id. Ultimately, the

administrative judge found that the appellant failed to meet her initial burden of

proving that any characteristic or activity protected under Title VII was a

motivating factor in the agency’s removal action. ID at 12-21.

¶31 Following the issuance of the initial decision in this case, the Board issued

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30,

which overruled parts of Savage and clarified the proper analytical framework to

be applied to affirmative defenses of Title VII discrimination and retaliation.

Specifically, the Board explained in Pridgen that for status-based discrimination

claims, in order to obtain full relief, the appellant must show that discrimination

or retaliation was the “but-for” cause of the personnel action. Pridgen,

2022 MSPB 31, ¶¶ 21-22, 30. The Board also clarified the expansive scope of

potentially relevant evidence. Id., ¶¶ 23-25.

¶32 Based on our review of the record, we conclude that the outcome of this

appeal under the standard set forth in Pridgen would be the same as that arrived at

by the administrative judge. On review, the appellant suggests that she met her

initial burden by simply establishing that the officials involved in her removal

had knowledge of her protected EEO activity. PFR File, Tab 3 at 21-22. We

disagree. In making this argument, the appellant seems to conflate the standards

for an EEO reprisal claim with the standards for a whistleblower reprisal claim.

Compare Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30 (explaining that claims of

retaliation for opposing discrimination in violation of Title VII are analyzed

under the same framework as used for Title VII discrimination claims), with

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 12, 18 (2015)

(describing how an appellant may establish a prima facie case of whistleblower

reprisal by simply proving that the official taking the personnel action had

knowledge of the employee’s protected disclosure and that the personnel action

occurred within a period of time such that a reasonable person could conclude

that the disclosure was a contributing factor in the personnel action).

¶33 Aside from her mistaken reliance on an inapplicable standard, the only

arguments the appellant presents about her Title VII discrimination and reprisal

claims are brief ones recounting and recharacterizing hearing testimony. PFR

File, Tab 3 at 22-24. This primarily concerns testimony about whether certain

management officials treated subordinates differently based on characteristics

such as race. Id. The appellant has not identified any other evidence in support

of her disagreement with the administrative judge. See 5 C.F.R. § 1201.115(a)(2)

(requiring that a petitioner explain why a challenged factual determination is

incorrect and identify specific evidence demonstrating the error).

¶34 Accordingly, after reviewing the record, we find that the appellant has

presented no basis for us to reach a conclusion different than the administrative

judge as to her Title VII discrimination and reprisal claims. 4 We therefore agree

with the administrative judge that the agency failed to meet its burden of proving

the validity of the appellant’s performance standards and the appellant failed to

prove any of her affirmative defenses.

ORDER

¶35 We ORDER the agency to cancel the removal and to retroactively restore

the appellant effective October 19, 2018. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶36 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

As previously mentioned, the appellant did not reassert her disability discrimination

claim on review. However, we make the following observations about the claim and

recent case precedent. The administrative judge indicated that the appellant had the

initial burden of proving by preponderant evidence that her disability was a motivating

factor in the removal action and, if she met that burden, the burden would shift to the

agency to prove by clear and convincing evidence that it would have taken the same

action in the absence of the improper motive. ID at 22-23 (citing, e.g., Southerland v.

Department of Defense, 119 M.S.P.R. 566, ¶ 23 (2013)). However, the Board in

Pridgen, 2022 MSPB 31, ¶¶ 20-25, 42, clarified that the standards and methods of proof

applicable to Title VII claims are also applicable to status-based disability

discrimination claims. Nevertheless, the administrative judge provided well-reasoned

findings as to why the appellant failed to prove that her disability was a motivating

factor in the removal action, and the appellant has not reasserted the matter on review.

Therefore, the administrative judge’s mistaken application of Southerland is of no

consequence, and we need not reach the question of “but-for” causation.

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶37 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. The appellant, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶38 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶39 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶40 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);

or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.

§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these

requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees

motion with the office that issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.