Gina Mostafaie v. Department of the Treasury

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GINA MOSTAFAIE, DOCKET NUMBER

Appellant, DC-0432-19-0480-I-1

v.

DEPARTMENT OF THE TREASURY, DATE: February 24, 2025

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Gina Mostafaie , Vienna, Virginia, pro se.

Gregg Avitabile , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

sustained the agency’s chapter 43 performance-based removal action. For the

reasons discussed below, we GRANT the appellant’s petition for review. We

MODIFY the initial decision to clarify the legal standard applicable to the

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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

appellant’s claim of sex discrimination and retaliation for prior protected equal

employment opportunity (EEO) activity and 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).

BACKGROUND

Effective August 10, 2018, the agency removed the appellant from her

position as a GS-12 Government Information Specialist under 5 U.S.C. chapter 43

for unacceptable performance. Initial Appeal File (IAF), Tab 4 at 101, Tab 13

at 4-11. Specifically, the agency charged that the appellant had failed to achieve

minimally acceptable performance in two critical elements of her position and that

she had failed to improve during a 90-day performance improvement plan (PIP).

IAF, Tab 5 at 4-10, Tab 7 at 4-10, Tab 13 at 4-11.

Following the issuance of the agency’s decision to remove her, IAF, Tab 13

at 4, the appellant filed a formal EEO complaint alleging that her removal was

based on (1) discrimination (age, sex, and national origin); and (2) reprisal for prior

protected EEO activity, IAF, Tab 1 at 11. The agency issued a final agency

decision on April 2, 2019 finding no discrimination. Id. at 11-18.

The appellant filed an appeal of the agency’s removal action to the Board and

requested a hearing on the matter. 2 Id. at 1. She raised the affirmative defenses of

sex-based discrimination and reprisal for protected EEO activity. IAF, Tab 1 at 2,

4, Tab 63 at 2. Following a hearing on the matter, the administrative judge issued

an initial decision finding that the agency proved the merits of its

performance-based removal action by substantial evidence and sustaining the

appellant’s removal. IAF, Tab 66, Initial Decision (ID) at 27, 35. In so doing, the

administrative judge explained that the appellant had not disputed that the agency’s

2

With her initial appeal form, the appellant provided an undated and unsigned

“CONFIDENTIAL SETTLEMENT AGREEMENT,” the relevance of which was unclear.

IAF, Tab 1 at 7-10.

3

performance appraisal system had been approved by the Office of Personnel

Management (OPM). ID at 3 n.4, 4. He also concluded that the agency’s

performance standards were valid, ID at 4-9, that the agency had communicated the

performance standards to the appellant, ID at 10-16, that the appellant was given a

reasonable opportunity to demonstrate acceptable performance, ID at 16-25, and

that the appellant had failed to demonstrate acceptable performance, ID at 26-27.

He also found that the appellant did not prove her affirmative defenses of sex

discrimination and retaliation for protected EEO activity by preponderant

evidence. 3 ID at 27-34.

The appellant has filed a petition for review. Petition for Review (PFR) File,

Tab 1. She alleges that: (1) the agency failed to provide her with adequate formal

performance reviews; (2) the agency’s performance standards were invalid; and

(3) the agency failed to show that her performance was unacceptable in at least one

critical element. PFR File, Tab 1 at 5. She also provides additional documents. Id.

at 8-59. The agency filed a reply. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved that the appellant’s performance was unacceptable under the

legal standard for chapter 43 actions at the time the initial decision was issued.

At the time the initial decision was issued, to prevail in an appeal of a

performance-based removal under chapter 43, the agency was required to prove by

substantial evidence 4 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

3

As noted below, the administrative judge also ostensibly considered whether the

agency’s action was based on age discrimination, which was not at issue in the appellant’s

Board appeal. IAF, Tab 63 at 2; ID at 27, 32.

4

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). This is a lower

standard of proof than preponderance of the evidence. Id.

4

performance standards are 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 at least

one critical element. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,

¶ 5 (2010).

On review, the appellant does not challenge the administrative judge’s

findings that the agency met its burden of proving elements one, two, and four, and

we find no reason to disturb these findings. See PFR File, Tab 1. However, the

appellant disputes the administrative judge’s findings pertaining to element three,

alleging that the agency’s performance standards were flawed and that neither of

the critical elements at issue, i.e., critical elements 1 and 6, contained clear

standards or measurable goals as required. PFR File, Tab 1 at 5.

Section 4302(b)(1) requires that performance standards, to the maximum

extent feasible, permit the accurate evaluation of job performance on the basis of

objective criteria related to the job in question. Lee, 115 M.S.P.R. 533, ¶ 29.

Standards must be reasonable, realistic, attainable, and clearly stated in writing.

Id. Provided these requirements are met, however, the Board will defer to

managerial discretion in determining what agency employees must do to perform

acceptably in their positions. Id.

Here, we agree with the administrative judge that the agency’s performance

standards were clearly stated, objective, and valid. IAF, Tab 4 at 102-13; ID at 4-9;

see Lee, 115 M.S.P.R. 533, ¶ 29. The appellant’s assertions amount to mere

disagreement with the administrative judge’s factual findings and legal conclusions

therefrom and do not warrant a different outcome. See Riggsbee v. Office of

Personnel Management, 111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an

appellant’s mere disagreement with the administrative judge’s explained factual

findings and legal conclusions therefrom does not provide a basis to disturb the

initial decision).

5

The appellant also raises element five in her petition for review and asserts

that the agency failed to prove that her performance was unacceptable in at least

one critical element. PFR File, Tab 1 at 5. To this end, she states that the

administrative judge “misinterpreted the Performance and Results Act of 1993

(GPRA).” Id. However, we see no reason to disturb the administrative judge’s

conclusion that the agency proved by substantial evidence that the appellant did not

demonstrate acceptable performance in two critical elements of her position. ID at

26-27. The administrative judge considered the relevant documentary and

testimonial evidence, including the agency’s detailed notice of proposed removal.

IAF, Tab 7 at 4-10; ID at 26-27; see Towne v. Department of the Air Force,

120 M.S.P.R. 239, ¶ 24 (2013) (explaining that a proposal notice can constitute

valid proof of the agency’s charges when the notice sets forth in detail an

employee’s errors and the deficiencies are corroborated by other evidence).

Furthermore, the Government Performance and Results Act of 1993, Pub. L.

103-62, 107 Stat. 285 (codified in sections of Titles 5, 31, and 39 of the U.S. Code)

relates to broad performance goals for the Federal government and Federal

agencies rather than individual Federal employees, and thus the appellant’s

reliance on the same is unavailing. PFR File, Tab 1 at 5; see, e.g.,

31 U.S.C. § 1115. 5

5

With her petition for review, the appellant submits a copy of the agency’s decision letter

and the administrative judge’s initial decision; however, these documents were part of the

record before the administrative judge and do not constitute new evidence. PFR File,

Tab 1 at 9-59; Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)

(explaining that evidence that is already a part of the record is not new). The appellant

also provides for the first time a copy of a Standard Form 50 (SF-50) dated March 4, 2018,

which reflects her receipt of a within-grade increase (WIGI), and indicates that she was

performing at an acceptable level of competence. PFR File, Tab 1 at 8. However, the

appellant does not explain why she was unable to provide this document that predates the

initial decision to the administrative judge, and we find that the document does not

warrant a different outcome. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)

(finding that the Board generally will not consider evidence submitted for the first time

with the petition for review absent a showing that it was unavailable before the record was

closed despite the party’s due diligence); Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980) (observing that the Board generally will not grant a petition for review

6

The appellant did not prove harmful procedural error.

On review, the appellant also reasserts that the agency failed to provide her

with a formal mid-year review and that it improperly placed her on a PIP “without

any rating of record.” PFR File, Tab 1 at 5. She contends that these alleged failures

amounted to harmful procedural errors insofar as the agency violated its own

policies and failed “to follow OPM’s . . . procedures.” 6 Id.

Pursuant to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency’s

decision if the appellant “shows harmful error in the application of the agency’s

procedures in arriving at such decision.” A procedural error is harmful where the

record shows that an error by the agency was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶ 10

(2015); 5 C.F.R. § 1201.4(r). An appellant bears the burden of proving, by

preponderant evidence, that the agency committed harmful error in reaching its

decision. Pumphrey, 122 M.S.P.R. 186, ¶ 10.

Here, we are not persuaded by the appellant’s claim of harmful procedural

error. Although the appellant made allegations before the administrative judge

regarding the agency’s purported failures to review her performance, 7 she did not

specifically raise a claim of harmful procedural error. IAF, Tab 63 at 2; see Banks

based on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision). To the extent that the appellant

provides this document to suggest that the agency failed to show that her performance

was unacceptable in at least one critical element, her contention is unavailing insofar as

the SF-50 was issued prior to the completion of her 90-day performance improvement

plan. PFR File, Tab 1 at 5; IAF, Tab 5 at 4-10; see 5 C.F.R. § 531.404(a) (setting forth

the circumstances under which employees receive WIGIs).

6

To the extent that the appellant is alleging that OPM did not approve the agency’s

performance appraisal system, PFR File, Tab 1 at 5, we find that the agency provided an

October 6, 2015 letter indicating that OPM had approved its performance appraisal plan,

IAF, Tab 4 at 119.

7

As set forth in the initial decision, the appellant argued that the agency’s alleged failure

to conduct reviews evinced that the agency had failed to notify her that her performance

was unacceptable. ID at 13-14. She also contended that this purported failure prevented

her from being able to file a grievance. ID at 14.

7

v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that 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).

Furthermore, we agree with the administrative judge that the appellant

received a sufficient mid-year review. ID at 10. The record reflects that the

appellant transferred to the agency from another Federal position effective

October 2, 2016, IAF, Tab 4 at 24, and that she received a copy of her performance

standards on February 17, 2017, id. at 102. The administrative judge implicitly

credited the testimony of the appellant’s supervisor, who explained that he

“conducted a mid-year performance review with the appellant during an in-person

discussion” on June 21, 2017. ID at 10; see Diggs v. Department of Housing and

Urban Development, 114 M.S.P.R. 464, ¶ 8 (2010) (finding that the Board must

give deference to an administrative judge’s credibility determinations when they

are based, explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing). 8 This finding is substantiated by the written record. IAF,

Tab 4 at 102. The appellant does not identify, and we are unable to locate, any

agency or OPM policy mandating a higher degree of formality for a mid-year

review. Therefore, the appellant has not identified any procedural error regarding

her mid-year review, much less any error that would likely have caused the agency

to reach a different conclusion. See Pumphrey, 122 M.S.P.R. 186, ¶ 10.

We also find no error in the agency placing the appellant on a PIP in lieu of

formally reviewing her performance. In the initial decision, the administrative

8

Although the administrative judge did not make any explicit demeanor-based credibility

determinations in his initial decision, he heard live testimony, and his credibility

determinations must be deemed to be at least implicitly based upon witness demeanor.

See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016)

(stating that, even if demeanor is not explicitly discussed by an administrative judge,

assessing a witness’s credibility involves consideration of various factors, including

demeanor); see also Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4

(2009).

8

judge similarly implicitly credited the testimony of the agency’s Director of Human

Resources who explained that, if an employee was found to be performing

unacceptably at the end of a rating year, then the employee’s supervisor was

instructed to place the employee on a PIP in lieu of providing a formal rating. ID

at 15. Here, the record shows that the appellant’s supervisor placed her on a PIP

following the conclusion of fiscal year 2017, i.e., the rating year. IAF, Tab 5

at 4-10. The appellant does not adduce, and we are unable to locate, any authority

that mandates a formal, written performance appraisal under these circumstances.

Thus, she again does not identify any procedural error on the agency’s part. See

Pumphrey, 122 M.S.P.R. 186, ¶ 10.

We modify the initial decision to supplement the administrative judge’s analysis

finding that the appellant did not prove her claims of sex discrimination and

retaliation for protected EEO activity.

In her petition for review, the appellant does not challenge the administrative

judge’s determination that she did not prove her affirmative defenses of sex

discrimination and retaliation for protected EEO activity by preponderant

evidence; however, we modify the initial decision to clarify the applicable legal

standard. 9

In analyzing the appellant’s claim of sex-based discrimination, the

administrative judge referenced the analytical framework set forth in Savage v.

Department of the Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25, which inquires

whether the appellant has 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. Despite correctly citing Savage, the administrative

9

Although not raised by either party, the initial decision twice referenced age

discrimination, which was not at issue in the appellant’s Board appeal. IAF, Tab 63 at 2;

ID at 27, 32. These typographical errors did not prejudice the appellant’s substantive

rights and therefore provide no basis for reversal of the initial decision. See Roesel v.

Peace Corps, 111 M.S.P.R. 366, ¶ 12 n.1 (2009).

9

judge’s findings did not specifically track that analytical framework, and he instead

concluded, after summarizing relevant documentary and testimonial evidence, that

the appellant had not presented preponderant evidence that the agency’s action was

based on her sex and that “the appellant failed to present evidence to show that the

agency’s action was false or a subterfuge designed to hide some improper motive.”

ID at 29-32. Nevertheless, we find that the administrative judge’s conclusion is

akin to finding that the appellant’s sex was not a motivating factor in the agency’s

action. See Savage, 122 M.S.P.R. 612, ¶ 51.

Similarly, although the administrative judge informed the appellant of the

correct burden of proof with respect to her affirmative defense of reprisal for

protected EEO activity, i.e., filing a complaint alleging discrimination on the basis

of age, sex, and national origin, IAF, Tab 63 at 3-4 (citing Savage, 122 M.S.P.R.

612, ¶ 51), he set forth an imprecise analytical framework for this claim. ID at 33

(citing Rockwell v. Department of Commerce, 39 M.S.P.R. 217, 222 (1988)).

However, insofar as the administrative judge concluded, based on credibility

determinations, that neither the proposing official nor the deciding official

considered the appellant’s EEO activity, we find that he implicitly found that the

appellant’s EEO activity was not a motivating factor in the agency’s decision to

remove her. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (stating that the Board must give deference to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on the

observation of the demeanor of witnesses testifying at a hearing and may overturn

such determinations only when it has “sufficiently sound” reasons for doing so);

see also Savage, 122 M.S.P.R. 612, ¶ 51. Because we agree with the conclusion

that the appellant did not show that any prohibited consideration was a motivating

factor in the agency’s action, we need not resolve the issue of whether the appellant

proved that discrimination or retaliation was a “but-for” cause of the agency’s

decision. See Pridgen, ¶ 22.

10

Remand under Santos is required.

As discussed above, 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 he issued

his initial decision. ID at 2-27. 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 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).

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 in the

remand initial decision his prior findings on the other elements of the agency’s case

and the appellant’s affirmative defenses, consistent with this Remand Order.

11

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, he 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

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.