The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDDIE KING, DOCKET NUMBER
Appellant, AT-0432-24-0431-I-1
v.
SMALL BUSINESS DATE: February 26, 2026
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Eddie King , Baton Rouge, Louisiana, pro se.
Claudine Landry , Esquire, Andrew D. Howell , Esquire, and Bryan Upshur ,
Esquire, Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his performance-based removal. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
Effective June 21, 2022, the appellant was hired as a GS-13 Size Specialist
in the agency’s Office of Government Contracting and Business Development, in
Atlanta, Georgia. Initial Appeal File (IAF), Tab 1 at 16-17. The appellant’s
primary duty in this position was to evaluate the size status of small businesses in
response to protest bids. IAF, Tab 5 at 477-82. The business -size determinations
were ultimately used to provide benefits to small businesses in the Federal
procurement process. Id. at 477. In making these size determinations, the
appellant was tasked with gathering information about the target companies in
coordination with other offices within the agency and preparing legally defensible
size determinations that were suitable to withstand further appeal and review. Id.
The appellant’s fiscal year (FY) 2023 performance plan included three critical
elements, (1) customer satisfaction, (2) conducting size determinations, and
(3) written materials. Id. at 488-99. The appellant’s performance was rated on a
5-tiered rating system based on the following ratings levels: Outstanding,
Exceeds Expectations, Meets Expectations, Marginal, and Unacceptable. Id.
at 488, 490-91.
By memorandum dated July 27, 2023, the agency notified the appellant that
his performance was unacceptable in all three critical elements of his position,
identified specific deficiencies within each critical element, and informed the
appellant that he was being placed on a 90-day performance improvement plan
(PIP) for the period from July 31 through October 31, 2023, during which he
would be provided with the opportunity to raise his performance to at least the
minimally acceptable, or “Marginal Level 2,” performance level for all three
critical elements. Id. at 369-71.
3
By memorandum dated November 1, 2023, the appellant’s first-line
supervisor informed the appellant that he had failed to perform the duties and
responsibilities of his position at Level 2/minimally acceptable level during the
PIP period, and therefore the supervisor was “tak[ing] appropriate steps to
remove” the appellant from his position. Id. at 122, 134. Attached to the notice
was a narrative log providing examples of the appellant’s unacceptable
performance during the PIP period. Id. at 124-32. By letter dated January 10,
2024, the agency proposed the appellant’s removal from Federal service under
chapter 43 based on his unacceptable performance. Id. at 115-19. After
considering the appellant’s written response to the proposal, id. at 83-112, the
deciding official sustained the decision, removing the appellant from Federal
service, effective February 28, 2024, id. at 79-80. The appellant timely filed a
Board appeal of the removal decision and raised affirmative defenses of
discrimination based on disability, race, and age; reprisal for prior equal
employment opportunity (EEO) activity; and retaliation for protected
whistleblowing activity. IAF, Tab 1 at 1-11, Tab 19 at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the removal action. IAF, Tab 26,
Initial Decision (ID) at 1, 29. Specifically, the administrative judge found that
the agency proved each of the following elements of the chapter 43 action by
substantial evidence: the Office of Personnel Management (OPM) approved the
agency’s performance management system; the appellant’s performance standards
were communicated to him and were valid; the agency gave the appellant a
reasonable opportunity to improve his performance during the PIP period; and the
appellant’s performance in each of the three critical elements was unacceptable
during the PIP. ID at 2-5, 8-11. The administrative judge further concluded that
the agency proved that the appellant’s placement on the PIP was “justified,”
meaning that it proved that the appellant’s pre-PIP performance was
unacceptable. ID at 3, 5-8 (citing Santos v. National Aeronautics and Space
4
Administration, 990 F.3d 1355, 1360-63 (Fed. Cir. 2021)); see Lee v. Department
of Veterans Affairs, 2022 MSPB 11, ¶ 14. Finally, the administrative judge
concluded that the appellant failed to prove his discrimination and retaliation
affirmative defenses. ID at 11-24. Having determined that the agency met its
burden of proving all of the required elements to support its performance-based
action and that the appellant failed to meet his burden of proving any of his
affirmative defenses, the administrative judge affirmed the removal action. ID
at 24-25.
The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tabs 2-4. The agency has filed a response to the
petition for review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erred by
finding that the agency’s performance appraisal system was approved by OPM,
arguing that the approval document the agency produced is “altered” and over
30 years old and no longer accurately reflects the agency’s performance appraisal
system. PFR File, Tab 4 at 5, 8, 16-18, 31. He also argues that his performance
was “outstanding” and that the administrative judge ignored positive aspects of
his job performance, and he identifies accomplishments and commendations that
he received for completing his job duties. Id. at 12-13, 20-21. He argues that
this positive evidence of his accomplishments contradicts the agency’s “fake,
bogus, and fraudulent performance ratings, [sic] and PIPs” and that the
administrative judge erred by disregarding his record of positive achievements in
favor of the agency’s evidence. Id. at 16, 21, 25-27. The appellant also
challenges some of the administrative judge’s findings on his affirmative
defenses. Id. at 4-32. Specifically, he argues that the administrative judge failed
to consider that he was replaced by a younger employee in connection with his
age discrimination claim, failed to consider the fact that his pre-EEO activity
5
performance reviews were positive in considering his EEO reprisal claim, and
improperly discounted his whistleblower retaliation claim. Id. Finally, the
appellant argues that the administrative judge and the agency mistreated and
failed to respect him during the hearing, and further, that the administrative judge
failed to accommodate his physical limitations during the hearing. Id.
The agency proved the performance-based removal action by substantial
evidence.
In an appeal of an agency action taken under chapter 43, an agency must
prove 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 his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
appellant’s performance during the appraisal period was unacceptable in one or
more critical elements; (5) the agency warned the appellant of the inadequacies in
his performance during the appraisal period and gave him an adequate
opportunity to demonstrate acceptable performance; and (6) after an adequate
improvement period, the appellant’s performance remained unacceptable in at
least one critical element. Lee, 2022 MSPB 11, ¶ 15.
The administrative judge determined that the agency met its burden to
prove its unacceptable performance charge. ID at 2-11, 24. Aside from disputing
OPM’s approval of the agency’s performance system and generally arguing that
his performance was “outstanding,” the appellant has not challenged the
administrative judge’s findings in this regard on review. Nevertheless, we will
briefly address the foregoing elements.
Regarding the first element, as previously noted, the administrative judge
concluded that the agency established that OPM had approved its performance
appraisal system, citing testimony from an agency Human Resources Specialist as
well as a copy of OPM’s approval of the appraisal system contained in the record.
6
ID at 3; IAF, Tab 5 at 610-13, 2 Tab 25-9, Hearing Recording (HR) (testimony of
the Supervisory Human Resources Specialist). On review, the appellant notes
that the agency’s documentation of OPM’s approval is from 30 years ago and
alleges that it is “altered.” PFR File, Tab 4 at 8. Because the appellant has not
identified why he believes the document is altered, we do not address that claim
further. Id.
While the agency has the burden of proof, ordinarily the Board will
presume that OPM has approved the agency’s performance appraisal system;
however, if an appellant has alleged that there is reason to believe that OPM did
not approve the agency’s performance appraisal system or significant changes to
a previously approved system, the Board may require the agency to submit
evidence of such approval. Van Prichard v. Department of Defense,
117 M.S.P.R. 88, ¶ 10 (2011), aff’d per curiam, 484 F. App’x 489 (Fed. Cir.
2012). There is no statutory requirement for renewing approval of an agency’s
performance appraisal system once in place. Daigle v. Department of Veterans
Affairs, 84 M.S.P.R. 625, ¶ 12 (1999). Therefore, the gap of 30 years since OPM
approved the agency’s appraisal system is not a reason to doubt such approval.
We agree with the administrative judge that the agency’s evidence was sufficient
to meet its burden as to this element. ID at 3.
Regarding the second and third elements as set forth in Lee, element 2
requires the agency to show that the performance standards were communicated
to the appellant, and element 3 requires it to establish that the performance
standards were valid. 2022 MSPB 11, ¶ 15. The administrative judge observed
that the agency produced documentary and testimonial evidence demonstrating
that the appellant’s performance standards and the critical elements of his
position were communicated to him on numerous occasions prior to the PIP. ID
2
The administrative judge identified pages 620-22 as the location of OPM’s approval.
ID at 3. Tab 5 contains only 614 pages, so this appears to be a typographical error, and
the correct location is instead pages 610-13.
7
at 3; IAF, Tab 5 at 377-87, 389-96, 416-419, 539-52, Tab 25-2, HR (testimony of
the appellant’s first-line supervisor/rating official). He further determined that
the standards clearly set forth the minimum level of performance that the
appellant was required to achieve to avoid removal for unacceptable performance,
and that agency officials provided additional guidance regarding the critical
elements. ID at 3-5. Consequently, he concluded that the standards were both
valid and properly communicated to the appellant. Id. The appellant has not
challenged these findings on review and we see no reason to disturb them.
The fourth element in Lee requires the agency to show that the appellant’s
performance during the appraisal period was unacceptable in one or more critical
elements. 2022 MSPB 11, ¶ 15. As a part of making this showing, the agency
must establish that the appellant’s performance was unacceptable prior to his
placement on the PIP. Santos, 990 F.3d at 1360-63.
Addressing the appellant’s performance during the appraisal period and
the agency’s justification for placing the appellant on the PIP, the
administrative judge observed that the agency notified the appellant as early as
February 14, 2023, that he was “not performing in a manner to meet his critical
element goals,” and, in a March 28, 2023 supervisory memorandum, informed the
appellant that his performance was at the “Marginal Level 2” and was “not on
track with meeting expectations and need[ed] improvement.” IAF,
Tab 5 at 398-99, 416-419; ID at 5-7. The administrative judge further observed
that for the appellant’s quarter 3 (Q3) FY 2023 review, which covered the period
from April 1 to June 30, 2023, his supervisor informed him that he was “failing to
meet performance standards” in all three critical elements of his position and
provided specific examples of the appellant’s inadequate performance for each of
the three elements. IAF, Tab 5 at 377-86; ID at 7. In that quarterly review, the
appellant’s supervisor also observed that “[i]n Q3 a Performance Improvement
Plan (PIP) may be required.” IAF, Tab 5 at 384. In addition to the quarterly
review, the administrative judge identified that the July 27, 2023 PIP
8
memorandum also informed the appellant that his performance to date was
unacceptable in all three critical elements of his position, identified performance
deficiencies for each critical element, and listed accomplishments expected of the
appellant to demonstrate performance at the Marginal Level 2/minimally
acceptable level. IAF, Tab 5 at 369-71; ID at 7.
On review, the appellant appears to argue that his pre-PIP performance was
not unacceptable, generally asserting that his performance was “outstanding,”
observing that he completed over 20 size-review cases during the period from
June 2022 to February 2024, and stating that he received praise and letters of
commendation for his work. PFR File, Tab 4 at 12, 20, 32. However, the
appellant has not explained how his completion of the “over 20” size cases
compares to the requirements set forth in his performance plan. IAF, Tab 5
at 488-99. Additionally, the June 2022 to February 2024 period that the appellant
identifies encompasses some periods during which the agency did not allege that
his performance was at the Unacceptable level and therefore did not serve as a
basis for his placement on the PIP. Id. at 539-52.
Further, the appellant made this argument below, asserting that the size
cases he completed during FY 2022 and FY 2023 (including periods that preceded
his unacceptable performance and placement on the PIP) were excluded from
consideration, and noting that he had received a positive FY 2022 performance
rating. IAF, Tab 13 at 5. Accordingly, the administrative judge properly
considered the evidence that the appellant identifies on review. We agree with
the administrative judge that the agency has proven by substantial evidence that
the appellant’s performance prior to his placement on the PIP was unacceptable in
all three of the critical elements of his position and that his placement on the PIP
was justified.
Next, the fifth element set forth in Lee requires the agency to show that it
warned the appellant of the inadequacies in his performance during the appraisal
period and gave him an adequate opportunity to demonstrate acceptable
9
performance. 2022 MSPB 11, ¶ 15. In analyzing this element, the administrative
judge made the following observations: the agency provided the appellant with a
90-day improvement period—in excess of the 30-day period the Board has held is
sufficient to satisfy the agency’s obligations; the appellant’s supervisor
frequently met with him during the PIP; the appellant did not argue that he had an
insufficient amount of time to improve his performance; and he did not request
assistance or training from his supervisor that was denied. ID at 10-11; see
Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 10 (2013)
(acknowledging that a 30-day PIP can satisfy an agency’s obligation to provide
an employee with a reasonable opportunity to demonstrate acceptable
performance), modified on other grounds by Lee, 2022 MSPB 11, ¶¶ 13-17.
Consequently, he concluded that the agency met its burden of showing that it
provided the appellant with a reasonable opportunity to improve his performance
to an acceptable level. ID at 11. The parties have not substantively challenged
the administrative judge’s findings on these points on review and we see no
reason to disturb them. As set forth in the initial decision, the undisputed record
demonstrates that the agency provided the appellant with ample opportunity to
improve his performance and to receive feedback during the PIP, including by
offering weekly meetings to discuss performance expectations. IAF, Tab 5 at 69,
136-58, 193-348, 363-67. Accordingly, we agree with the administrative judge’s
conclusion that the agency met its burden of proving this element.
Finally, the sixth element identified in Lee requires the agency to
demonstrate that, after an adequate improvement period, the appellant’s
performance remained unacceptable in at least one critical element. 2022 MSPB
11, ¶ 15. The administrative judge noted that the appellant’s first -line supervisor
maintained a PIP journal that described in considerable detail the appellant’s
failure to attain at least minimally acceptable performance by the end of the PIP.
ID at 8; see IAF, Tab 5 at 124-32. The journal logged the appellant’s deficiencies
during the PIP period on a daily basis, linked them to specific tasks, and
10
identified the relevant critical elements for each deficiency. IAF, Tab 5 at 124-32
(the supervisor’s PIP journal), 179-91 (the appellant’s FY 2023 appraisal, issued
October 17, 2023, identifying his Level 1/Unacceptable summary rating and
Level 1/Unacceptable rating for each of the three critical elements).
The administrative judge further found that the removal proposal described
how the appellant’s performance was deficient during the PIP period for each of
the three critical elements, and that the appellant’s supervisor provided testimony
confirming the appellant’s unacceptable performance during the PIP, which the
appellant did not contradict other than to generally allege that his performance
was “outstanding” and that the evidence of his deficient performance was “false.”
ID at 9-10. Other than generally reasserting that his performance was outstanding
and, as previously noted, pointing to his performance in prior appraisal periods,
the appellant has not meaningfully challenged these findings on review, and we
see no reason to disturb them. Accordingly, we agree with the administrative
judge that the agency established this element. Having proved all of the required
elements of its case-in-chief by substantial evidence, we agree with the
administrative judge’s finding that the agency met its burden of proof for taking a
removal action under chapter 43.
The appellant’s allegations of mistreatment and bias are unsupported by the
record.
On review, the appellant alleges that he was mistreated by the agency and
the administrative judge during the proceedings below as follows: the
administrative judge exhibited “deliberate indifference” based on his failure to
acknowledge the existence of the appellant’s spinal injury disability in advance of
the proceedings and failure to identify potential accommodations for the appellant
during the hearing; the administrative judge failed to offer regular breaks during
the hearing, worsening the appellant’s symptoms; agency counsel asked repetitive
and irrelevant questions, was insulting and rude, and often cut off the appellant
and his witnesses during the hearing, which the administrative judge permitted;
11
and the administrative judge repeatedly encouraged the appellant to settle his
appeal and implied that he did not have any chance to prevail in his case.
PFR File, Tab 4 at 4, 10-11, 15-19, 23-25, 28. As a result of these and other
grievances, the appellant argues that the hearing was unfair, the administrative
judge exhibited bias, and the outcome of the appeal was predetermined against
him. Id. at 16, 25.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). Even “remarks . . . that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” Liteky, 510 U.S. at 555.
We have reviewed the hearing record and find no support for the
appellant’s allegations of bias. The administrative judge maintained a neutral and
respectful tone throughout the course of the proceedings, and in fact provided the
appellant with significant leeway during his questioning, often over the agency’s
objections, citing the appellant’s pro se status. IAF, Tab 25-4, HR at 18:10-18:30
(testimony of an Attorney in the agency’s Office of General Counsel), Tab 25-14,
HR at 16:10-16:30, 38:15-38:40, 42:15-42:44 (testimony of the appellant). To
the extent that the administrative judge interrupted the appellant during his
testimony, it was to respond to agency objections to the appellant’s questioning
or to address other necessary procedural matters. With respect to the appellant’s
claim that the administrative judge failed to offer regular breaks or to anticipate
and account for the appellant’s physical limitations during the hearing, the
12
appellant has not alleged—and there is no evidence in the record—indicating that
he informed the administrative judge of his need for regular breaks or that he
requested any breaks and his requests were denied.
Regarding the appellant’s argument that the fact the administrative judge
repeatedly encouraged him to settle his appeal and allegedly suggested that he
may lose his case demonstrated bias, there is no evidence in the record that the
administrative judge did anything more than generally encourage the parties to
engage in settlement discussions and to identify the Board’s well-established
public policy favoring settlement agreements. IAF, Tab 2 at 7-8, Tab 9 at 1,
Tab 19 at 1. Regardless, administrative judges may make honest appraisals of the
likelihood of the success of an appeal if the parties elect to pursue adjudication
rather than settle the matter. Nettles v. Department of the Army, 52 M.S.P.R. 181,
185 (1991); see Chakravorty v. Department of the Air Force, 90 M.S.P.R. 304,
¶ 8 (2001) (explaining that in settlement negotiations, administrative judges are
permitted to inform the parties of the relative strengths and weaknesses of their
cases, and such statements do not indicate bias or coercion). Accordingly, we
conclude that the appellant has failed to establish that the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible,” Bieber, 287 F.3d at 1362-63, and we find his
claim of bias to be without merit.
The administrative judge correctly determined that the appellant failed to prove
his affirmative defenses of discrimination and EEO reprisal.
As previously noted, the appellant raised affirmative defenses of
discrimination based on his race, age, and disability. IAF, Tab 19 at 2. He also
alleged reprisal for prior EEO activity and whistleblowing. Id. The
administrative judge determined that the appellant failed to prove any of these
claims. ID at 11-24. We turn now to his discrimination and EEO reprisal claims.
Even when, as here, an agency proves its charge of unacceptable
performance under chapter 43, its action may not be sustained if it is based on a
13
prohibited personnel practice such as discrimination or retaliation.
5 U.S.C. §§ 2302(b)(1), (8)-(9), 4303(e), 7701(c)(2)(B); Newton v. Department of
the Navy, 27 M.S.P.R. 156, 157-58 (1985). Title VII and the Age Discrimination
in Employment Act (ADEA) require that personnel actions “shall be made free
from any discrimination” based on age, race, color, religion, sex, or national
origin. 29 U.S.C. § 633a(a); 42 U.S.C. § 2000e-16(a). An appellant may
establish a claim of discrimination or reprisal under either Title VII or the ADEA
by proving that the prohibited consideration was a motivating factor in the
contested action, i.e., that discrimination or reprisal played “any part” in the
agency’s decision. Pridgen v Office of Management and Budget , 2022 MSPB 31,
¶¶ 20-22, 30 (citing Babb v. Wilkie, 589 U.S. 399, 405-08 (2020)); see Wilson v.
Small Business Administration, 2024 MSPB 3, ¶ 13. However, to obtain the full
measure of relief available under the statute, the appellant must show that such
discrimination or reprisal was a “but-for” cause of the employment outcome.
Pridgen, 2022 MSPB 31, ¶ 22 (citing Babb, 589 U.S. at 413-14). The “but-for”
standard generally requires a showing that the harm would not have occurred in
the absence of—that is, but for—the discriminatory conduct. Wilson, 2024 MSPB
3, ¶ 15.
Race discrimination
Addressing the appellant’s race discrimination claim in the initial decision,
the administrative judge observed that the appellant had offered little information
concerning this claim in his pleadings and failed to address any allegation of race
discrimination during his hearing testimony. ID at 14; IAF, Tab 25-14, HR
(testimony of the appellant). We agree.
As the administrative judge correctly noted, at the hearing, the appellant
did not offer any evidence of discrimination based on his race. He did not offer
any evidence suggesting in any way that he was treated more harshly than an
individual who was not a member of his protected group, nor did he provide any
other kind of evidence indicating that the agency’s action was based on
14
discriminatory intent either during the hearing or in his pleadings. See Pridgen,
2022 MSPB 31, ¶ 24 (identifying the various methods by which an appellant may
prove his claim of discrimination under Title VII). The only mention of the
appellant’s race discrimination claim on review is a single reference stating that
his removal was the product of discrimination based on his race. PFR File, Tab 4
at 12. Accordingly, we see no reason to disturb the administrative judge’s
finding that the appellant did not meet his burden to prove this affirmative
defense.
Age discrimination
In analyzing the appellant’s age discrimination claim below, the
administrative judge observed that there was “little (if any) evidence or
argument” in the appellant’s pleadings supporting his age discrimination claim
and that the appellant had not mentioned age discrimination during the hearing.
ID at 16; IAF, Tab 25-14, HR (testimony of the appellant). On review, the
appellant argues that the administrative judge failed to consider evidence revealed
during the hearing that the agency filled the vacancy created by his removal with
a younger employee and moved the position to Florida, which he argues supports
his age discrimination claim. PFR File, Tab 4 at 5, 9-12, 15, 21 -22, 28, 31-32.
An administrative judge’s failure to mention all of the evidence of record
does not mean that he did not consider it in reaching his decision. Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶ 34. 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. Id. (citing Purifoy v. Department of Veterans Affairs,
838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002)). Here, the administrative judge implicitly
credited the testimony of the proposing and deciding officials denying that age
was a factor in their actions. ID at 26. The appellant’s arguments do not provide
sufficiently sound reasons for us to overturn these credibility findings. Haas,
15
2022 MSPB 36, ¶¶ 6, 31, 34 (declining to overturn an administrative judge’s
implicit demeanor-based determination to credit the testimony of an agency
official denying that an appellant’s protected EEO activity had any effect on his
decision to propose the appellant’s removal).
Further, the appellant’s evidence that a younger individual was hired
following his removal is not particularly persuasive evidence of age
discrimination. As the agency notes in its response, the appellant’s first-line
supervisor testified on cross-examination during the hearing that, after the
appellant was removed from his position, the agency promoted another agency
employee—who had previously held the position before the appellant’s hire—to
the appellant’s former position. IAF, Tab 25-3, HR at 14:00-14:35 (testimony of
the appellant’s first-line supervisor). In response to the appellant’s question
about his replacement’s age, the appellant’s supervisor testified that he was not
aware of her age but, if he “had to guess,” he would guess that she was in her
“forties.” Id. at 14:35-14:49. The appellant’s second-line supervisor further
testified that the employee who was hired to fill the appellant’s former position
was employed elsewhere within the agency at the time of the appellant’s removal
and requested to be reassigned to the position, which was the same grade as her
existing position. IAF, Tab 25-6, HR at 43:30-44:40 (testimony of the appellant’s
second-line supervisor). The second-line supervisor clarified that, in her role, she
could reopen the position to any state within her assigned area, which included
Florida and Georgia, and that she could direct hire any person who met the
eligibility requirements for the position. Id. at 43:30-44:19.
As the administrative judge correctly observed, aside from asserting that
his termination was due to discrimination based on his age, the appellant did not
otherwise refer to his age discrimination claim anywhere in his pleadings or
specifically allege that the agency’s decision to hire his replacement was due to
discrimination based on age. ID at 15-16. Aside from the above limited
exchanges, the appellant failed to elicit any other testimony during the hearing
16
regarding any potential age discrimination claim. The fact that an employee was
replaced by a younger individual alone is insufficient to prove an age
discrimination claim. O’Hearn v. General Services Administration, 41 M.S.P.R.
280, 286 (1989), aff’d, 902 F.2d 44 (Fed. Cir. 1990) (Table). Therefore, even
considering the testimony identified by the appellant on review, we agree with the
administrative judge that the appellant failed to establish that discrimination
based on age was a motivating factor in the agency’s decision to remove him.
Therefore, he failed to prove this affirmative defense.
EEO reprisal
With respect to his affirmative defense of reprisal for his prior EEO
activity, the appellant argues that, after he filed his EEO complaint, his
supervisor retaliated by preparing the “bogus” PIP and negatively rating the
appellant’s performance for the first time. PFR File, Tab 4 at 12-13, 19, 28.
There are multiple methods of proving a Title VII affirmative defense, but
whatever method of proof an appellant chooses, he must show that discrimination
was a motivating factor in, or but-for cause of, the action under appeal. Wilson,
2024 MSPB 3, ¶¶ 11-12; Pridgen, 2022 MSPB 31, ¶¶ 20-24. In the absence of
direct evidence, one way an appellant may prove that discrimination was a but-for
cause of the agency’s action is under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), under which
the appellant must first establish a prima facie case of discrimination by showing
that (1) he is a member of a protected class, (2) he suffered an adverse
employment action, and (3) the unfavorable action gives rise to an inference of
discrimination. Wilson, 2024 MSPB 3, ¶ 16. Once the appellant has made out a
prima facie case, the burden shifts to the agency to articulate a nondiscriminatory
explanation for the action. Id., ¶ 17. If the agency meets this burden, the burden
shifts back to the appellant to show that the agency’s reason is pretextual or that
it was more likely than not that the agency was motivated by discrimination. Id.
17
Applying this framework in the initial decision, the administrative judge
determined that the appellant’s first-line supervisor, who was also the proposing
official, acknowledged that he was aware of the appellant’s prior EEO complaint
but denied that the complaint had any effect on his decision to propose the
appellant’s removal. ID at 13-15; IAF, Tab 25-2, HR at 52:45-53:00, 55:00 -55:05
(testimony of the appellant’s first-line supervisor). Additionally, the appellant’s
second-line supervisor testified that she had no knowledge of the appellant’s EEO
activity, while the deciding official did not offer testimony about his knowledge
of the appellant’s EEO activity but nevertheless testified that EEO activity played
no role in his removal determination. ID at 14; IAF, Tab 25-6, HR (testimony of
the appellant’s second-line supervisor), Tab 25-7, HR (testimony of the deciding
official). Despite acknowledging the proposing official’s potential knowledge of
the appellant’s EEO activity, the administrative judge nevertheless concluded that
the agency offered a legitimate, non-retaliatory reason for its action, namely the
significant evidence of the appellant’s unacceptable performance in all three
critical elements of his position. ID at 15. On that basis, the administrative judge
determined that the appellant failed to prove that his EEO complaint was a
motivating factor in his removal. Id. The appellant has not challenged these
findings on review, and we see no reason to disturb them.
Despite our agreement with these conclusions, we take this opportunity to
clarify the administrative judge’s findings on one point. In addressing the
appellant’s EEO reprisal claim, the administrative judge identified that the
appellant filed his EEO complaint in April 2023, but did not identify the basis for
the appellant’s prior EEO activity. IAF, Tab 19 at 2, Tab 26 at 14-15. In his
initial appeal filing, the appellant identified that he alleged disability
discrimination in his April 2023 EEO complaint. IAF, Tab 1 at 26. Additionally,
a copy of the EEO counselor’s report included in the record identifies disability
as one of the bases for his complaint and lists the appellant’s conditions as severe
spinal cord injury, high blood pressure, and diabetes. IAF, Tab 17 at 77. It also
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refers to claims based on race, color, and age. Id. Thus, the appellant’s EEO
reprisal claim falls under both Title VII and Rehabilitation Act standards.
Although the “motivating factor” standard is applicable to claims alleging
retaliation for EEO activity pertaining to discrimination under Title VII,
disability discrimination claims are adjudicated under the Rehabilitation Act,
which has incorporated by reference the standards of the Americans with
Disabilities Act (ADA) of 1990, as amended by the Americans with Disabilities
Act Amendments Act of 2008. Pridgen, 2022 MSPB 31, ¶ 35. Under the ADA,
an appellant must prove “but-for” causation in the first instance when raising a
claim of reprisal for filing EEO complaints alleging disability discrimination.
Id., ¶¶ 43-47. Further, the McDonnell Douglas shifting burden test generally is
appropriate only for determining whether discrimination or retaliation was a but-
for cause of the employment action, not whether it was a motivating factor.
Wilson, 2024 MSPB 3, ¶ 16 & n.7. Nevertheless, regardless of the standard
applied, we agree with the administrative judge’s finding that the appellant failed
to prove that his prior EEO activity was a motivating factor in his removal, and
we also find that he did not meet the higher “but-for” standard of causation. See
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 31-33.
Disability discrimination
For the appellant’s disability discrimination claim, the administrative judge
noted that the appellant provided little, if any, testimony about this claim during
the hearing, so the basis of his disability discrimination claim was unclear.
ID at 19. However, based on the appellant’s pleadings, the administrative judge
concluded that the appellant appeared to be alleging discrimination based on
reasonable accommodation and disparate treatment theories. Id.
Addressing the appellant’s reasonable accommodation claim in the initial
decision, the administrative judge assumed, without deciding, that the appellant
established that he was an individual with a disability. ID at 21 n.9. The
administrative judge found that the appellant initially requested a reasonable
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accommodation of full-time telework in January 2023, based on his treatment for
hypertension and diabetes in Louisiana, after which the agency initiated the
interactive process. ID at 20-21 & n.9; IAF, Tab 5 at 411-14, 522-24. He further
noted that, after the appellant modified his request to permit him to work from
Louisiana 6 days per pay period, the agency denied the requested accommodation
—concluding that the provided medical documentation did not support the request
—and offered an alternative accommodation that would permit the appellant to
work remotely from Louisiana on the day before his medical appointments, the
day of the appointments, and the day after his appointments. ID at 21-22; IAF,
Tab 5 at 411-14. The appellant requested reconsideration, which the agency
denied, and the appellant ultimately accepted the agency’s alternative
accommodation offer. ID at 22; IAF, Tab 5 at 403-05, 407-08, Tab 25-2, HR
(testimony of the appellant’s first-line supervisor). Based on the above, the
administrative judge determined that the agency engaged in the reasonable
accommodation interactive process and provided the appellant with a reasonable
accommodation and that therefore the appellant failed to establish this claim.
ID at 22-23.
With respect to his disparate treatment claim, the administrative judge
determined that the appellant had not offered any of the forms of evidence
identified by Pridgen for analyzing a disparate treatment disability discrimination
claim, including direct or indirect evidence of discriminatory animus, evidence
that the agency’s reasons for the removal were pretextual, or comparator evidence
showing that the agency treated the appellant differently than similarly situated
non-disabled employees. ID at 23. Consequently, the administrative judge
determined that the appellant failed to meet his burden of showing that his
disability was a motivating factor in, or a but-for cause of, the agency’s action.
ID at 23-24.
On review, the appellant has not challenged the administrative judge’s
specific findings on these points. Instead, he generally reasserts that he is an
20
individual with a disability and that the agency denied his requested
accommodation. PFR File, Tab 4 at 14-15, 19, 22-24.
To the extent that the appellant takes issue with the administrative judge’s
statement that he questioned whether the appellant was “disabled” under the
Rehabilitation Act but would assume he was for purposes of the appeal, we
discern no error. ID at 21 n.9. As discussed further below, the administrative
judge resolved the appellant’s discrimination claims on the bases that the agency
provided a reasonable accommodation and the appellant did not prove that his
disability was motivating factor in, or but-for cause of, his removal. Therefore,
the administrative judge did not need to make a determination as to whether the
appellant was disabled to resolve his claims. See Haas, 2022 MSPB 36, ¶ 29 n.9
(recognizing that although only an otherwise qualified individual with a disability
is entitled to relief under the ADA, some disability claims can be resolved on the
basis that an individual is not disabled without determining if he is otherwise
qualified because an appellant has the burden of proving both matters); Kirkland
v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013) (explaining
that an appellant alleging that she was denied a reasonable accommodation had
the burden of proving that a reasonable accommodation would have enabled her
to perform in her position); Doe v. Pension Benefit Guaranty Corporation,
117 M.S.P.R. 579, ¶ 46 (2012) (stating that when an agency has already
articulated a nondiscriminatory reason for its adverse action, the inquiry proceeds
directly to the ultimate question of whether, upon weighing all of the evidence,
the appellant has met her burden of proving that the agency intentionally
discriminated against her based on disability). Further, we agree with the
administrative judge’s determination that the appellant did not prove his
disability discrimination claims.
Turning first to the appellant’s denial of accommodation claim, although
the appellant reargues on review that he should have been granted his preferred
accommodation of remote work from Louisiana, the Board has held that an
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employee is not entitled to the accommodation of his choice. Henry v.
Department of Veterans Affairs, 108 M.S.P.R. 458, ¶ 22 (2008). Instead, the
agency is only obligated to provide the appellant with an effective
accommodation. See Dominica H. v. Department of Veterans Affairs, EEOC
Appeal No. 2022004884, 2025 WL 1025192, at *3 (Mar. 12, 2025) (concluding
that an appellant could not prevail on her claim that she was denied reasonable
accommodation when she rejected an agency’s offer of an effective
accommodation); 29 C.F.R. part 1630, app. § 1630.9 (stating that “if more than
one . . . accommodations will enable the individual to perform the essential
functions . . . , the preference of the individual with the disability should be given
primary consideration,” but “the employer providing the accommodation has the
ultimate discretion to choose between effective accommodations”); Equal
Employment Opportunity Commission, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the ADA, No. 915.002, Questions 9,
20 (Oct. 17, 2002) (“The employer may choose among reasonable
accommodations as long as the chosen accommodation is effective”; “[a]n
employer need not provide an employee’s preferred accommodation as long as the
employer provides an effective accommodation.”). The agency met its obligation
here when it granted an accommodation that permitted the appellant to work
remotely from Louisiana for the 3-day period surrounding his doctor
appointments—an accommodation the appellant ultimately accepted—concluding
that the medical evidence the appellant provided was insufficient to support his
preferred accommodation of remote work. IAF, Tab 5 at 411-14, 421-27.
Accordingly, we agree that the appellant failed to prove his reasonable
accommodation claim.
We also agree with the administrative judge that the appellant failed to
prove his disparate treatment claim. As the administrative judge identified with
respect to the appellant’s other affirmative defenses, the appellant did not offer
any evidence or testimony in support of his disparate treatment disability
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discrimination claim below. He also has not done so on review. Therefore, we
agree that he failed to prove that discrimination on the basis of disability was
either a motivating factor in, or a but-for cause of, the agency’s decision to
remove him and so he failed to prove this affirmative defense. ID at 23-24; see
Pridgen, 2022 MSPB 31, ¶¶ 37-42.
We nevertheless must remand the appeal to the administrative judge to address
the appellant’s whistleblower retaliation affirmative defense.
In the initial decision, the administrative judge determined that the
appellant failed to prove his whistleblower retaliation affirmative defense.
ID at 16-17. In doing so, the administrative judge observed that the appellant had
not offered any testimony concerning his claim or alleged that he made any
protected disclosures or engaged in any protected activity for which the agency
retaliated against him by removing him. ID at 17. Instead, the administrative
judge observed, the appellant appeared to be alleging that his whistleblower
retaliation claim rested on his argument that he engaged in protected activity by
filing his April 2023 EEO complaint. Id. However, the administrative judge
rejected this argument, concluding that the Board has held that a disclosure of
discrimination in connection with an EEO complaint did not constitute protected
activity under the Whistleblower Protection Enhancement Act of 2012. Id.
Following the issuance of the initial decision in this case, however, the
Board issued decisions in Reese v. Department of the Navy, 2025 MSPB 1, and
Holman v. Department of the Army, 2025 MSPB 2. In Reese, 2025 MSPB 1,
¶¶ 44-52, the Board held that disclosures concerning alleged violations of Title
VII may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C) if made to
an agency “component responsible for internal investigation or review.”
In Holman, 2025 MSPB 2, ¶¶ 12-13, the Board found for the first time that
an agency’s EEO office is such a component and, therefore, that speaking with
an EEO counselor and filing an EEO complaint both are protected activity under
5 U.S.C. § 2302(b)(9)(C). A copy of the EEO counselor’s report for the
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appellant’s complaint is included in the record and identifies that the appellant
filed his informal complaint on March 31, 2023, and states that he alleged in his
complaint that he was subjected to discrimination, harassment, and reprisal on the
basis of his race, color, age, and disability. IAF, Tab 17 at 75-79. The appellant
received a right to file a formal complaint on April 12, 2023, and he appears
to have timely filed a formal complaint thereafter. IAF, Tab 1 at 26, 48-58,
Tab 5 at 60-61.
As previously noted, the appellant alleged in his initial filing that he was
removed in retaliation for his EEO activity, and he continued to argue the same
throughout the proceedings below. IAF, Tab 1 at 18, 26, 39-41, Tab 13 at 5-6,
11-13, 20, 33, Tab 25-14, HR at 20:30-22:00 (testimony of the appellant). The
Board requires its administrative judges to apprise appellants of the applicable
burdens of proving a particular affirmative defense, as well as the kind of
evidence required to meet those burdens. Erkins v. U.S. Postal Service,
108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails to inform the
parties of their burden and methods of proof, and the appellant has not withdrawn
or abandoned the affirmative defense, the Board typically remands the appeal so
the administrative judge can afford such notice and an opportunity to submit
evidence and argument under the proper standard. Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶ 7 (2015); Erkins, 108 M.S.P.R. 367, ¶ 8. Because the
administrative judge did not have the benefit of Reese and Holman, he did not
provide the parties with notice of their respective burdens of proof regarding the
appellant’s potential whistleblower retaliation claim under
5 U.S.C. § 2302(b)(9)(C).
We recognize that the administrative judge analyzed the same activity
under Title VII. However, different standards apply to a claim of reprisal for
activity protected under 5 U.S.C. § 2302(b)(9)(C). Specifically, when such
claims are made in the context of an otherwise appealable action, as here, the
appellant must prove by preponderant evidence that he made a protected
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disclosure or engaged in protected activity and that the disclosure or activity was
a contributing factor in the personnel action at issue. Pridgen, 2022 MSPB 31,
¶¶ 49-50. If the appellant makes this showing, the burden shifts to the agency to
prove by clear and convincing evidence that it would have taken the personnel
action absent the protected disclosure or activity. Id.
Accordingly, remand of the appeal is required for further development of
the record and a finding on the merits of the whistleblower reprisal affirmative
defense. The administrative judge may adopt his previous findings regarding the
performance-based action and the appellant’s remaining affirmative defenses, as
modified above.
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.