Erik Roehrdanz v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIK ROEHRDANZ, DOCKET NUMBER

Appellant, SF-0714-20-0216-I-1

v.

DEPARTMENT OF VETERANS DATE: February 10, 2025

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Erik Roehrdanz , Miami, Florida, pro se.

Camille D. Stroughter , Esquire, Oakland, California, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

REMAND ORDER

The agency has filed a petition for review of the initial decision, which

reversed the appellant’s performance-based reduction in grade and pay under

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

38 U.S.C. § 714. For the reasons discussed below, we GRANT the agency’s

petition for review, VACATE the initial decision, and REMAND the case to the

regional office for further adjudication in accordance with this Remand Order.

BACKGROUND

The appellant was a GS-12 Supervisory Veterans Service Representative

for the agency. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 15. According to

the appellant’s position description, “The supervisor plans and assigns work

priorities for his/her subordinates – usually a work team of approximately 6-15

administrative employees ranging from GS-5 to GS-12--and has final technical

authority over the final work product.” IAF, Tab 7 at 29 (punctuation as in

original).

The appellant’s performance plan contained four critical elements and one

non-critical element. IAF, Tab 4 at 4-6. Each element was rated on a 3-tier

scale: unacceptable, fully successful, or exceptional. Id. at 7. The summary

rating was on a 5-tier scale and was derived according to the ratings on the

individual elements. Id. at 8. However, a rating of unacceptable in even one

critical element would result in a rating of unacceptable overall. Id. One critical

element in the appellant’s performance plan was “Supervision.” Id. at 15.

Among other things, the Supervision element requires that supervisors accurately

manage and certify their subordinates’ timecards by 10:00 a.m. the Friday they

are due, complete monthly performance reviews with each subordinate by the

15th of every month, and complete other tasks within designated timeframes. Id.

On or about September 20, 2019, the appellant received a summary rating

of unacceptable for the 2019 performance year due to a rating of unacceptable in

the Supervision element. Id. at 4-8. In support of this rating, the agency cited six

instances during the performance year in which the appellant failed to meet the

criteria set forth therein. IAF, Tab 4 at 7, Tab 7 at 19-20. Specifically, the

agency stated that the appellant once certified a timecard incorrectly, once failed

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to certify timecards on time, twice failed to complete monthly performance

reviews on time, and twice failed to complete other designated tasks on time.

IAF, Tab 7 at 19-20. On December 12, 2019, the agency proposed the appellant’s

reduction in grade and pay under 38 U.S.C. § 714 based on a charge of failure to

demonstrate acceptable performance in the Supervision element during the 2019

performance year. Id. at 19-22. After the appellant responded, the agency issued

a decision reducing the appellant in grade and pay to the nonsupervisory position

of GS-11 Veterans Service Representative, effective January 19, 2020. Id.

at 15-18.

The appellant filed a Board appeal, challenging the merits of the agency’s

action and raising an affirmative defense of whistleblower reprisal. IAF, Tab 1

at 3, Tab 19 at 4. After a hearing, the administrative judge issued an initial

decision reversing the reduction in grade and pay. IAF, Tab 56, Initial Decision

(ID). She found that the agency proved its charge and that the appellant failed to

prove his affirmative defense. ID at 13-15, 18-22. Nevertheless, the

administrative judge found that the agency failed to support its choice of penalty

by substantial evidence. ID at 15-17. Specifically, she found that, after the fifth

time the appellant failed to meet the requirements of the Supervision element, his

second-level supervisor warned him that any additional failures in this regard

would result in a performance improvement plan (PIP). ID at 5, 16. The

administrative judge found that, under these circumstances, the appellant was not

on clear notice that he might face disciplinary action, without an opportunity to

improve, for failing to meet his performance standards. ID at 16. Finding no

indication that the deciding official considered this strongly mitigating penalty

factor, and lacking the authority to mitigate the penalty, the administrative judge

reversed the action in its entirety. ID at 16-17.

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The agency has filed a petition for review, disputing the administrative

judge’s penalty analysis. 2 Petition for Review (PFR) File, Tab 1. The appellant

has filed a response. PFR File, Tab 3.

ANALYSIS

In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the

agency bears the burden of proving its charges by substantial evidence.

38 U.S.C. § 714(d)(2)(a). If the agency meets this standard, the Board may not

mitigate the agency’s chosen penalty, but it is nevertheless required to review the

penalty as part of the agency’s overall decision. 38 U.S.C.

§ 714(d)(2)(B), (3)(C); Sayers v. Department of Veterans Affairs, 954 F.3d 1370,

1375-79 (Fed. Cir. 2020). On review, neither party disputes that the agency

proved its charge by substantial evidence. ID at 13-15. Nor does either party

dispute the administrative judge’s findings on the whistleblower defense. ID

at 18-22. The agency does, however, dispute the administrative judge’s penalty

analysis. PFR File, Tab 1.

In her initial decision, the administrative judge found that the deciding

official conscientiously considered several of the factors listed in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). ID at 15-16.

Nevertheless, she found that the inaccurate indication to the appellant that he

would be placed on a PIP after any further performance problems was of such

overriding concern that the deciding official’s failure to consider this matter

rendered his penalty determination unworthy of deference. ID at 16. The

administrative judge further found that the appellant could not have reasonably

2

The agency also argues that the administrative judge erred by requiring it to prove a

nexus between the appellant’s performance deficiency and the efficiency of the service.

Petition for Review File, Tab 1 at 16-17. Unless the agency is attempting to reserve the

right to discipline employees for conduct that does not affect the efficiency of the

service, we do not understand its reason for making this argument. In any event, the

issue is immaterial to this appeal because a demonstrated performance deficiency

obviously satisfies the nexus requirement.

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expected to face disciplinary action without first being provided the promised

opportunity to improve his performance and that this factor weighed so strongly

against the chosen penalty that the agency failed to carry its burden on this

matter. ID at 17.

On petition for review, the agency argues that the administrative judge

applied the wrong standard of review to its penalty determination. PFR File,

Tab 1 at 9-13. We are not convinced that the administrative judge applied

anything other than substantial evidence review, as required by Sayers. ID at 11,

15-17. Nevertheless, regardless of the standard of review applied, we disagree

with the administrative judge’s analysis. Although the agency should not have

warned the appellant of one course of action and then taken another, we do not

see why this error should affect the propriety of its penalty selection. 3 First, we

disagree with the administrative judge’s characterization of this penalty factor.

Under Douglas, 5 M.S.P.R. at 305, the Board will consider “the clarity with

which the employee was on notice of any rules that were violated in committing

the offense, or had been warned about the conduct in question,” not “the clarity

with which the appellant was on notice that he might face disciplinary action” for

violating those rules. ID at 16. In this case, it is undisputed that the appellant

was aware of his performance standards and that the agency reminded him of

those standards after each instance cited in the proposal notice. ID at 3-5; IAF,

Tab 4 at 4, Tab 7 at 19-20. Second, the administrative judge referred to the

appellant’s “reliance” on the agency’s inaccurate statement that he would be

3

Arguably, the administrative judge’s assessment of this penalty factor was tantamount

to a finding of harmful procedural error. ID at 16-17. However, we find no basis in

law to conclude that the agency’s warning to the appellant that he would be placed on a

PIP created any sort of rule or was otherwise binding on the agency. See Scott v.

Department of Justice, 69 M.S.P.R. 211, 242 (1995) (finding that the appellant did not

prove his claim of harmful error because he failed to identify any rule or regulation that

the agency violated in the application of its procedures), aff’d, 99 F.3d 1160

(Fed. Cir. 1996) (Table). The Board’s jurisdiction does not cover all matters involving

a Federal employee that may be unfair or incorrect. Johnson v. U.S. Postal Service,

67 M.S.P.R. 573, 577 (1995).

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placed on a PIP. ID at 17 n.8. However, our review of the record reveals no

evidence to show that the appellant made any reliance on that statement or

changed his position for the worse because of it. In fact, it is difficult to envision

what such reliance would look like short of complacency in the face of an

impending PIP. There is nothing in the record to suggest that the appellant

engaged in such an irresponsible course of action, and even if he had, this would

hardly amount to a mitigating circumstance. Third, even if this penalty factor had

weighed in the appellant’s favor, it is just one of many relevant factors to be

considered in determining an appropriate penalty. See Singh v. U.S. Postal

Service, 2022 MSPB 15, ¶ 18. For these reasons, we find that the agency’s

misrepresentation to the appellant was not a mitigating factor, much less a factor

so strongly mitigating that the agency’s penalty determination could not survive

substantial evidence review.

We further find that the current record contains substantial evidence to

support the agency’s penalty selection. The deciding official explained that he

considered the appellant’s performance deficiencies and their actual effect on the

agency’s mission and the morale of his subordinates. Hearing Recording (HR),

Track 7 at 38:50 (testimony of the deciding official). He considered the

particular circumstances of the appellant’s case, including his belief that the

appellant could still provide useful and efficient service in a nonsupervisory

position, and he made efforts to ensure that the appellant would incur as little loss

of pay as possible as a result of his demotion. Id. at 43:30 (testimony of the

deciding official). Because the deciding official considered the appropriate

penalty factors and because a reduction in grade generally is seen as a reasonable

penalty for unsatisfactory performance, see, e.g., Madison v. Defense Logistics

Agency, 48 M.S.P.R. 234, 239 (1991); O’Reilly v. Community Services

Administration, 16 M.S.P.R. 44, 48 (1983); see also 5 U.S.C. § 4303(a)

(prescribing reduction in grade and removal as penalties for unacceptable

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performance under 5 U.S.C. chapter 43), we find substantial evidence to support

the agency’s penalty determination. 4

Nevertheless, this appeal must be remanded for a different reason.

Specifically, the record shows that the deciding official found the charge proven

by substantial evidence. IAF, Tab 7 at 16; HR, Track 7 at 33:20 (testimony of the

deciding official). However, after the initial decision in this appeal was issued,

the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued a

precedential decision in Rodriguez v. Department of Veterans Affairs , 8 F.4th

1290, 1296-1301 (Fed. Cir. 2021), holding that substantial evidence is the

standard of review to be applied by the Board during its review of an agency

action, not by the agency in taking the action. Id. at 1298-1300. The court

reasoned that, because 38 U.S.C. § 714 requires an agency’s deciding official to

“determine” whether “the performance or misconduct . . . warrants” the action at

issue, the deciding official must use a preponderance of the evidence standard of

proof. Id. at 1298-1301.

The court’s decision in Rodriguez applies to all pending cases, regardless

of when the events at issue took place. See Lee v. Department of Veterans

Affairs, 2022 MSPB 11, ¶ 16 (recognizing that a new precedential Federal Circuit

decision applied to all cases pending with the Board). Because the administrative

judge and the parties did not have the benefit of Rodriguez, they were unable to

address its impact.

We therefore remand this case for adjudication of whether the agency’s

apparent error in applying the substantial evidence standard of proof was

4

Even if the agency fails to prove by substantial evidence that its chosen penalty was

reasonable, the remedy is not to reverse the action completely. Rather, “if the Board

determines that the [agency] failed to consider the Douglas factors or that the chosen

penalty is unreasonable, the Board must remand to the [agency] for a redetermination of

the penalty.” Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1326-27

(Fed. Cir. 2021) (citing Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1325

(Fed. Cir. 2021)).

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harmful. 5 On remand, the administrative judge should provide the parties with an

opportunity to present evidence and argument addressing whether the agency’s

use of the substantial evidence standard constituted harmful error. See 5 U.S.C.

§ 7701(a)(1). The administrative judge should then address this affirmative

defense in a new initial decision.

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. On remand, the

administrative judge shall allow the parties to submit evidence and argument,

including a supplemental hearing, if appropriate, on the harmful error issue

discussed above. See supra ¶¶ 11-13. The administrative judge shall then issue a

new initial decision consistent with this Order.

5

In Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 23, the Board found

it appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to actions

taken under 38 U.S.C. § 714. A harmful error is an error by the agency in the

application of its procedures that is likely to have caused the agency to reach a different

conclusion from the one it would have reached in the absence or cure of the error. Id.;

Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r).

The appellant bears the burden of proving harmful error by preponderant evidence.

5 C.F.R. § 1201.56(b)(2)(i)(C).

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The administrative judge may incorporate findings from the previous initial

decision to the extent that they are not inconsistent with this Order or with any

additional evidence submitted on remand. Regardless of whether the appellant

proves harmful error in the agency’s application of the substantial evidence

burden of proof in the removal decision, if any argument or evidence on remand

affects the administrative judge’s analysis of the appellant’s affirmative defenses

or the agency’s penalty, she should address such argument or evidence in the

remand initial decision. See Semenov v. Department of Veterans Affairs ,

2023 MSPB 16, ¶ 25.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.