Opinion

Cory Rogers v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 28, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CORY RYAN ROGERS, DOCKET NUMBER

Appellant, DA-0432-24-0051-I-1

DEPARTMENT OF DEFENSE, DATE: May 28, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mario E. Benavides , Esquire, El Cajon, California, for the appellant.

Patrick A. Hodges , Esquire, Temple L. Wilson , Esquire,

and Kristina A. Letcher , Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

sustained his performance-based removal. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

An agency may reduce in grade or remove an employee for unacceptable

performance under 5 U.S.C. § 4303 when it proves the following by substantial

evidence: 2 (1) the Office of Personnel Management approved the agency’s

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 of 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 one or more of the critical elements. Lee v. Department of

Veterans Affairs, 2022 MSPB 11, ¶ 15.

On review, the appellant does not directly challenge the administrative

judge’s findings as to any of the above elements. He instead argues that his

placement on a performance improvement plan (PIP) was unjustified because he

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).

was not warned of his performance deficiencies before the PIP notice was issued.

However, the U.S. Court of Appeals for the Federal Circuit, our reviewing court

in this matter, has held that “there is no rule or regulation requiring an agency

acting under chapter 43 to notify or warn an underperforming employee of a

performance problem before issuing a PIP.” Harris v. Securities and Exchange

Commission, 972 F.3d 1307, 1316 (Fed. Cir. 2020). Rather, “the PIP notice itself

often serves as the warning” of a performance problem. Id.; see also Santos v.

National Aeronautics and Space Administration, 990 F.3d 1355, 1362 (Fed. Cir.

2021) (quoting Harris). Given that holding, we disagree with the appellant’s

contention that his placement on a PIP was unjustified under Santos.

We have, however, considered the appellant’s argument that the agency

committed harmful error based on its failure to comply with Article 23 of the

collective bargaining agreement between the Defense Contract Audit Agency

(DCAA) and the American Federation of Government Employees (AFGE), and

Department of Defense Instruction (DODI) 1400.25, Volume 431. Article 23,

Section 6.0 C. reads: “DODI Section 3.9.a. In order to address any performance

deficiencies early, the supervisor is highly encouraged to initiate additional

performance meetings with the employee whenever a decline in performance is

identified.” Initial Appeal File (IAF), Tab 11 at 9. The referenced provision

from DODI 1400.25, Volume 431, section 3.9., Identifying and Improving

Unacceptable Performance, reads:

At any point during the appraisal cycle, when a supervisor detects a

decline in performance, early intervention is imperative. Assistance

should be provided to the employees early on, whenever there is a

need for improvement or any time there is a decline in performance.

The supervisor should take the following actions, as appropriate:

(1) Clearly communicate to the employee that current

performance fails to meet the performance standards described in

the performance plan; provide clear guidance as to what is needed

in order for the employee to improve; and provide specific

examples of what and how work has not met expectations, as well

as examples of work that would meet expectations.

(2) Offer appropriate assistance.

(3) Provide ideas of where the employee may go to obtain

additional assistance or training, if applicable.

(4) Provide closer supervision and feedback. This might include

more frequent reporting, special assignments, or on-the-job

training.

(5) If performance issues persist, use a more formal approach to

help employees improve and seek assistance from the human

resources office.

Id. at 13-14.

The administrative judge found that the cited provisions “do not reflect

procedural requirements with which the agency failed to comply, but rather

guidelines or best practices.” Initial Decision at 20 (emphasis in original). We

tend to agree with the appellant that the administrative judge was incorrect on this

point, and that the agency was required under its own policies to address the

appellant’s performance issues as they arose. See IAF, Tab 11 at 14 (stating that

“early intervention is imperative” (emphasis added)).

Nonetheless, we agree with the administrative judge that, regardless of

whether the cited agency policies required the agency to provide notice of

performance deficiencies prior to the initiation of the PIP, the agency did provide

such notice. As the administrative judge noted, the appellant’s first-level

supervisor testified that she frequently discussed the appellant’s work

performance with the appellant and told him during the December 2022 progress

review that his performance needed to improve significantly before the end of the

rating period. To the extent the appellant denied being aware prior to the PIP

notice that his performance was deficient, the administrative judge gave more

credence to the supervisor’s testimony, and we defer to his credibility

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

Cir. 2002). Moreover, the appellant made statements prior to the PIP reflecting

his awareness that he missed deadlines, performed poorly on a particular audit,

and was slow to complete assignments. See IAF, Tab 12 at 8-11. In addition, the

appellant’s December 2022 progress review discussed deficiencies the appellant

needed to address regarding his completion of audits. IAF, Tab 5 at 165.

In any case, harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be

presumed; an agency error is harmful only where the record shows that the

procedural error 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.

Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).

Assuming for the sake of argument that the appellant was not notified of his

performance issues prior to the PIP notice, and that this was a violation of agency

procedures, he has not shown that it is more likely than not that a timelier

intervention would have prevented his removal.

We have also considered the appellant’s contention that the initial decision

was overly devoted to his disability discrimination claim. The appellant argues

that the Joint Prehearing Submission “does not contain anything related to [his]

disability.” Petition for Review File, Tab 1 at 11. However, while the

submission does not include the word “disability,” it contains a list of affirmative

defenses including failure to accommodate. IAF, Tab 14 at 5. The

failure-to-accommodate claim was also listed in the summary of the prehearing

conference, IAF, Tab 17 at 4, and the appellant did not file a written objection to

the summary. The appellant states that at some point he informed the

administrative judge that he did not wish to pursue a disability discrimination

claim, but we find no indication of this in the record. In any event, the appellant

does not dispute the administrative judge’s findings regarding the alleged failure

to accommodate.

NOTICE OF APPEAL RIGHTS 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

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

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

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

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

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

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

of appeals of competent jurisdiction. 4 The court of appeals must receive your

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

5 U.S.C. § 7703(b)(1)(B).

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

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