The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCIA JAMES, DOCKET NUMBER
Appellant, AT-0432-20-0579-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: December 9, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Marcia James , Riverview, Florida, pro se.
Holly L. Buchanan Eglin Air Force Base, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
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 discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regional Office for further adjudication consistent with
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Santos v. National Aeronautics and Space Administration, 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
The appellant was employed as a GS-11 Budget Analyst at the MacDill Air
Force Base in Tampa, Florida. Initial Appeal File (IAF), Tab 4 at 12. On
June 7, 2019, the appellant was placed on a performance improvement plan (PIP)
to address her performance issues in five critical elements of her position:
(1) Budget Formulation, (2) Budget Execution, (3) Assistance and Guidance,
(4) Research and Analysis of Budget Reports, and (5) Lead Budget Analyst. IAF,
Tab 5 at 21-27. At the end of the PIP, which was extended to August 27, 2019, 2
the appellant’s supervisor determined that the appellant had not raised her
performance to an acceptable level in the critical element of Assistance and
Guidance. IAF, Tab 5 at 4-5, Tab 8 at 9. The agency removed the appellant
under 5 U.S.C. chapter 43 for unacceptable performance in the critical element of
Assistance and Guidance, effective May 8, 2020. IAF, Tab 4 at 13-18.
The appellant filed an appeal with the Board, alleging that the agency
deemed her performance unacceptable even though they gave other analysts
passing appraisals for using the same documentation she was told to use to
complete the Tri-Annual Review. 3 IAF, Tab 1 at 5. After holding the appellant’s
2
The PIP was originally intended to be in effect for 45 days. IAF, Tab 5 at 26.
However, on July 12, 2019, the appellant’s supervisor notified the appellant that she
was extending the PIP to August 6, 2019. Id. at 28. On August 6, 2019, the appellant’s
supervisor notified the appellant that she was extending the PIP a second time to
September 30, 2019. Id. at 29. The appellant’s supervisor explained that September 30,
2019, would have been the end of a budget review cycle. IAF, Tab 13, Hearing
Recording (HCD) (testimony of the appellant’s supervisor). However, the PIP actually
ended on August 27, 2019 . IAF, Tab 4 at 13. The appellant was pulled from the duties
on August 27, 2019, because her supervisor was concerned about the quality of her
work. Id. at 16.
3
The Tri-Annual Review (TAR) is a financial review that occurs three times a year.
IAF, Tab 13, HCD (testimony of the appellant’s supervisor). During the TAR, the
comptroller’s office identifies accounting lines with funds that are not being used and
determines whether the funds are still needed or if the funds can be de-obligated so that
3
requested hearing, the administrative judge affirmed the appellant’s removal.
IAF, Tab 15, Initial Decision (ID). The administrative judge noted that the
appellant did not raise the issue of whether the agency proved that the Office of
Personnel Management (OPM) had approved its performance appraisal system
and deemed it unnecessary to make a formal finding on this issue. ID at 5 n.2.
She found that the agency proved that: (1) the performance standards were valid;
(2) they were communicated to the appellant at the beginning of the appraisal
period; (3) the appellant was warned of her deficiencies during the appraisal
period and given an adequate opportunity to improve; and (4) the appellant’s
performance remained unacceptable during the PIP period in a critical element.
ID at 5-18.
The appellant has filed a petition for review and a supplement. Petition for
Review (PFR) File, Tabs 1-2. The agency has responded in opposition to the
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency proved the elements of its
chapter 43 action under the law when the initial decision was issued.
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance-based removal appeal under chapter 43, the agency
must establish by substantial evidence that: (1) 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; (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
they can be used elsewhere. Id. The appellant was the point of contact for the TAR,
and it was her responsibility to go over the accounting lines with unused funds and refer
them to work units for more information or gather the information herself. Id.
4
provided an opportunity to demonstrate acceptable performance. 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). The
administrative judge found that the agency proved the elements of a chapter 43
action. ID at 5-17.
On review, the appellant challenges the administrative judge’s decision not
to make a formal finding on whether the agency proved that OPM had approved
its performance appraisal system. PFR File, Tab 1 at 5-6, Tab 2 at 8; ID at 5 n.2.
She asserts that “anything regarding the PIP should be removed since it was
proved invalid.” PFR File, Tab 2 at 8.
Ordinarily, the Board will presume that the agency is in compliance with
this requirement; however, if an appellant has alleged that there is reason to
believe the agency has not received OPM approval for its performance appraisal
system or any significant changes to an approved system, it is the agency’s
burden to demonstrate that it has received the necessary approval. Adamsen v.
Department of Agriculture, 116 M.S.P.R. 331, ¶ 6 (2011); Lee, 115 M.S.P.R. 533,
¶ 5. The appellant did not raise such a challenge until her petition for review.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). Even if we were to consider the
appellant’s assertion, it appears to address the validity of the PIP rather than the
agency’s performance appraisal system. Under these circumstances, we find that
it is appropriate to apply the presumption that OPM has approved the agency’s
performance appraisal system; thus, the agency proved the first element.
The appellant has not challenged, and we discern no reason to disturb, the
administrative judge’s findings as to the second and third elements. To the extent
that the appellant is challenging the administrative judge’s findings as to the
fourth and fifth elements, she has not identified a basis to disturb them.
5
Remand is required in light of Santos.
Notwithstanding, remand is required for a different reason. While this case
was pending on review, the U.S. Court of Appeals for the Federal Circuit
recognized for the first time that an agency must prove an additional element to
support an adverse action charge under chapter 43. Santos, 990 F.3d at 1360-61.
Specifically, the agency “must justify institution of a PIP” by proving the
employee’s performance was unacceptable before the PIP. Id. at 1360; Lee v.
Department of Veterans Affairs, 2022 MSPB 11, ¶ 14. The holding applies to all
pending cases, regardless of when the events took place. Lee, 2022 MSPB 11,
¶ 16.
Although the record contains some evidence regarding the appellant’s pre-
PIP performance, the parties were not on notice as to this element. Thus, we must
remand the appeal to give the parties an opportunity to present additional
evidence as to whether the appellant’s performance was unacceptable in one or
more critical elements prior to the issuance of the PIP. See Lee, 2022 MSPB 11,
¶ 16 (remanding the chapter 43 appeal because the parties were not informed of
the modified standard set forth in Santos).
On remand, the administrative judge shall accept argument and evidence on
this issue and 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 in the remand initial decision her prior
findings on the other elements of the agency’s case. See id.
6
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.