Chenshiang Lin v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 2

Docket No. CH-0752-15-0340-I-2

Chenshiang D. Lin,

Appellant,

v.

Department of the Air Force,

Agency.

January 9, 2023

Jeffrey Silverstein, Esquire, Dayton, Ohio, for the appellant.

Daniel J. Dougherty, Esquire, Wright-Patterson Air Force Base, Ohio, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

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

affirmed his removal under the agency’s Science and Technology Reinvention

Laboratory Personnel Management Demonstration Project, 75 Fed. Reg. 53076-01

(Aug. 30, 2010) (Lab Demonstration Project), applicable to individuals, like the

appellant, employed in the agency’s Air Force Research Laboratory (AFRL). For

the reasons that follow, we GRANT the appellant’s petition for review, VACATE

the initial decision, and REMAND the case to the Central Regional Office for

2

further adjudication of the agency’s charge and the appellant’s affirmative

defenses under the standards articulated in this Remand Order.

BACKGROUND

¶2 As further detailed in the initial decision, the appellant most recently held

the position of Senior General Engineer, DR-III, for the AFRL. Lin v.

Department of the Air Force, MSPB Docket No. CH-0752-15-0340-I-1, Initial

Appeal File (IAF), Tab 9, Part 1 at 19-20; Lin v. Department of the Air Force,

MSPB Docket No. CH-0752-15-0340-I-2, Refiled Appeal File (AF-2), Tab 8,

Initial Decision (ID) at 1-2. 1 In this position, he was subject to a

contribution-based compensation system (CCS), rather than the traditional

performance-based system. ID at 5; IAF, Tab 9, Part 3 at 9-10.

¶3 In the CCS that applies in this appeal, contribution in engineering positions

such as the appellant’s are assessed in four “factors,” which are averaged to

determine an individual’s overall CCS score: (1) Problem Solving;

(2) Communication; (3) Technology Management; and (4) Teamwork and

Leadership. 75 Fed. Reg. at 53090, 53093, 53102-04. For each factor, the Lab

Demonstration Project contains detailed descriptions of four “broadband levels”

of contribution, levels I through IV. Id. at 53084, 53086, 53102-04.

An individual’s broadband level and pay dictates his expected level of

contribution. Id. at 53084, 53086. For instance, the appellant held a DR-III

broadband level position, so his contribution on the four factors was determined

based on his DR-III broadband level, with some variance based on his actual pay

1

At the request of both parties, the administrative judge dismissed the initial appeal

without prejudice for automatic refiling at a later date, resulting in the two docket

numbers associated with this single matter. IAF, Tab 30.

3

within the broadband. 2 IAF, Tab 9, Part 2 at 222-31, Part 3 at 4. At the time of

his removal, the appellant’s expected contribution score was 3.05, i.e. , a level III

base score adjusted to account for his actual pay within that broadband. Id.,

Part 1 at 83, 93-94. The appraisal period under the Lab Demonstration Project

“begins on October 1 and ends on September 30 of the following year.” 75 Fed.

Reg. at 53090.

¶4 When the agency determines that an employee is inadequately contributing,

one option provided in the CCS is a Contribution Improvement Plan (CIP), which

is comparable to a performance improvement plan (PIP) under chapter 43.

75 Fed. Reg. at 53093-94. If an employee fails to demonstrate increased

contribution during the CIP, or if his “contribution increases to a higher level and

is again determined to deteriorate in any area within two years” from the start of

the CIP, the Lab Demonstration Project provides management with discretion to

reduce the pay of or remove the employee without a new CIP. Id. at 53093.

¶5 In January 2013, the agency placed the appellant on a 120-day CIP, citing

contribution scores of 3.0 for Problem Solving, 2.9 for Communication, 2.0 in

Technology Management, and 3.0 in Teamwork and Leadership for the appraisal

year ending in September 2012, which resulted in an overall contribution score of

2.73, below the 3.05 score expected of him. ID at 12; IAF, Tab 9, Part 2

at 222-31, Part 3 at 4-8. In September 2013, the agency advised him that he had

satisfactorily completed the CIP, but remained subject to the 2-year period in

which the Lab Demonstration Project allowed for his removal if his contribution

deteriorated. ID at 12; IAF, Tab 9, Part 2 at 220-21, Part 3 at 36-37; 75 Fed. Reg.

at 53093.

2

The designation “DR” is a reference to the appellant’s Scientist and Engineer pay

plan. 75 Fed. Reg. at 53083. Other than being one of a number of considerations that

determined his expected level of contribution, it is not relevant to our discussion here.

4

¶6 In January 2015, the agency completed the appellant’s annual contribution

evaluation for the period of October 2013 to September 2014, concluding that his

overall contribution score was 2.73, which was again below the 3.05 score

expected of him. IAF, Tab 9, Part 1 at 83-86, 92-93, Part 2 at 4-11. Effective

March 4, 2015, the agency removed him for “failure to demonstrate an adequate

level of contribution commensurate with [his] compensation (salary) level for the

period 1 October 2013 through 30 September 2014, within a two-year period of a

[CIP].” ID at 4-5; IAF, Tab 9, Part 1 at 19-21, 92-94. The instant appeal

followed. IAF, Tab 1.

¶7 The administrative judge held the appellant’s requested hearing and issued

an initial decision, affirming his removal. ID at 1-2, 54; IAF, Tab 6 at 2.

In determining that the agency proved its contribution-based charge,

the administrative judge applied the standard applicable to a chapter 43

performance-based action, with some adjustments to account for differences

between a chapter 43 appeal and the Lab Demonstration Project. ID at 5-6, 9-44.

She found that the appellant failed to prove his affirmative defenses of age

discrimination and reprisal for engaging in equal employment opportunity (EEO)

activity. ID at 44-54.

¶8 The appellant has filed a petition for review. Lin v. Department of the Air

Force, MSPB Docket No. CH-0752-15-0340-I-2, Petition for Review (PFR) File,

Tab 3. 3 The agency has filed a response, and the appellant has replied. 4 PFR

File, Tabs 5-6.

3

The appellant offers new evidence on review in the form of an affidavit from a

previously unidentified witness and her supporting documents. PFR File, Tab 3 at 7,

10-52. The Board 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. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980). The appellant asserts that that this information was “not available at

the time of the hearing,” but does not provide any factual support for this claim.

PFR File, Tab 3 at 5. Therefore, we have not considered this evidence.

5

ANALYSIS

The appeal must be remanded for further analysis of the charge and affirmative

defenses.

¶9 A tenured Federal employee like the appellant may appeal a

contribution-based reduction in pay or removal under the agency’s Lab

Demonstration Project to the Board. IAF, Tab 9, Part 1 at 19; 75 Fed. Reg.

at 53094 (citing 5 C.F.R. § 432.106 as reflecting the appeal and grievance rights

of an employee under the Lab Demonstration Project); see 5 C.F.R. § 432.106(a)

(indicating that eligible employees have the right to appeal a chapter 43 removal

or reduction in grade to the Board). The Lab Demonstration Project provides that

the procedures for instituting a removal or reduction-in-grade action “are similar

to and replace those established in 5 CFR part 432 pertaining to

performance-based reduction in grade and removal actions.” 75 Fed. Reg.

at 53093. It further provides that the procedures in part 432 are “waived to the

extent necessary” to permit the agency’s CCS broadband system and CIP process,

and to exclude appeals of “reductions in broadband level not accompanied by a

reduction in pay.” 75 Fed. Reg. at 53098. Part 432 contains the regulations of

the Office of Personnel Management (OPM) implementing the provisions of

5 U.S.C. chapter 43 relating to the reduction in grade or removal of an employee

for unacceptable performance. 5 C.F.R. § 432.101.

¶10 When the initial decision was issued, the Board’s case law stated that, in

an appeal of a typical performance-based removal under chapter 43, the agency

was required to prove the following by substantial evidence: (1) OPM approved

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A reply is limited to the factual and legal issues raised by another party in the

response to the petition for review. 5 C.F.R. § 1201.114(a)(4). It may not raise new

allegations of error. Id. Accordingly, we will not consider arguments first raised by

the appellant in his reply, such as his assertion that removal was too harsh a penalty.

PFR File, Tab 6 at 5-13; see Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 5

n.3 (2015) (declining to consider new arguments that were first raised in a reply brief).

We also will not consider the evidence first presented with his reply. PFR File, Tab 6

at 15-28; see Avansino, 3 M.S.P.R. at 214.

6

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) his performance standards were valid under 5 U.S.C.

§ 4302(c)(1); (4) the agency warned him of the inadequacies of his performance

during the appraisal period and gave him an adequate opportunity to demonstrate

acceptable performance; and (5) after an adequate improvement period, his

performance remained unacceptable in at least one critical element. Lee v.

Department of Veterans Affairs, 2022 MSPB 11, ¶ 13. Agencies generally

provide their employees with an opportunity to demonstrate acceptable

performance by placing them on a PIP. Santos v. National Aeronautics & Space

Administration, 990 F.3d 1355, 1361 (Fed. Cir. 2021).

¶11 However, while this case was pending on review, the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) recognized for the first time that

an agency must prove an additional element to support an adverse action under

chapter 43. Santos, 990 F.3d at 1360-61; Lee v. Department of Department of

Veterans Affairs, 2022 MSPB 11, ¶ 14. Specifically, the agency “must justify

institution of a PIP” by proving that the employee’s performance was

unacceptable before the PIP. Santos, 990 F.3d at 1360-61; Lee, 2022 MSPB 11,

¶ 14. The court noted that 5 U.S.C. § 4302(c)(6) authorizes actions against

employees “who continue to have unacceptable performance but only after

an opportunity to demonstrate acceptable performance.” Santos, 990 F.3d

at 1360-61 (quoting 5 U.S.C. § 4302(c)(6)). The court reasoned that proving

continued unacceptable performance requires a showing that the performance was

unacceptable prior to the PIP. Santos, 990 F.3d at 1360-61. This holding applies

to all pending cases, regardless of when the events took place. Lee, 2022 MSPB

11, ¶ 16. For the reasons explained below, Santos is applicable to this matter.

7

The administrative judge correctly determined that chapter 43 was

generally applicable to the agency’s proof of its charge.

¶12 The administrative judge analyzed the agency’s proof of its charge as if the

appellant was unsuccessful in completing a PIP under chapter 43. ID at 5-6,

9-44. She modified the elements of a chapter 43 charge of unacceptable

performance to account for the specific requirements of the Lab Demonstration

Project. In particular, she found that the agency was required to prove by

substantial evidence that (1) OPM approved the contribution system, (2) the

agency communicated to the appellant his four contribution factors and expected

level of contribution, (3) the four contribution factors were valid, (4) the agency

warned the appellant that his contribution was inadequate and gave him a

reasonable opportunity to demonstrate adequate contribution during the 2-year

period following the CIP (specifically, in the instant case from October 1, 2013,

to September 30, 2014), and (5) his contribution remained deficient. ID at 9-44.

The parties do not dispute the administrative judge’s formulation of the agency’s

burden to prove the charge. We agree that she appropriately began her analysis

of the charge with the factors set forth in chapter 43.

¶13 In the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454,

§ 601(a), 92 Stat. 1111, 1185 (codified in pertinent part at 5 U.S.C.

§§ 4701(a)(4), 4703(a)), Congress authorized OPM to conduct, directly or

through agencies or organizations, projects known as “demonstration projects,” to

evaluate and determine whether “a specified change in personnel management

policies or procedures would result in improved Federal personnel management.”

Since the enactment of the CSRA, OPM has approved various demonstration

projects. See, e.g., Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 3

(2015) (describing an OPM demonstration project applicable to an appellant’s

position at the Department of the Army); Solamon v. Department of Commerce,

119 M.S.P.R. 1, ¶¶ 2-3 (2012) (describing a demonstration project approved by

OPM for the Bureau of Economic Analysis); Guillebeau v. Department of the

8

Navy, 93 M.S.P.R. 379, ¶ 2 (2003) (analyzing removal for unsatisfactory work

performance, issued under an OPM-approved demonstration project), aff’d,

362 F.3d 1329 (Fed. Cir. 2004). An agency using an OPM-approved

demonstration project is not “limited . . . by any provision of [Title 5]” or any

rule or regulation implementing Title 5 “which is inconsistent with [an] action”

regarding, among other things, compensating, assigning, reassigning, promoti ng,

or methods of disciplining employees. 5 U.S.C. § 4703(a).

¶14 Congress later specifically required the Secretary of Defense to implement

demonstration projects in certain military laboratories, including the AFRL.

National Defense Authorization for Fiscal Year 2008, Pub. L. No. 110-181,

§ 1107, 122 Stat. 3, 357-58 (requiring the Secretary of Defense to implement

demonstration projects at certain Department of Defense laboratories (referencing

5 U.S.C. § 9902(c)(2) (listing, among other laboratories, the AFRL)); National

Defense Authorization for Fiscal Year 1995, Pub. L. No. 103-337, § 342(b),

108 Stat. 2663, 2721 (1994) (providing that the Secretary of Defense may

implement demonstration projects at science and technology reinvention

laboratories under 5 U.S.C. § 4703 with OPM approval). It also expressly

eliminated any requirement that the Secretary obtain OPM approval for such a

demonstration project. National Defense Authorization Act for Fiscal Year 2001

(2001 NDAA), Pub. L. No. 106-398, app. § 1114(a), 114 Stat. 1654A-315 (2000).

The agency relied on 5 U.S.C. § 4703 and the foregoing authorizations in

implementing its Lab Demonstration Project. 75 Fed. Reg. at 53076.

¶15 The Lab Demonstration Project in this matter contains specific provisions

for “[d]ealing with [i]nadequate [c]ontribution.” Id. at 53093-94. It waives

Title 5 statutes and regulations, including 5 U.S.C. §§ 4301-4305 “to the extent

necessary to allow provisions of the [CCS],” and 5 C.F.R. §§ 432.101-.105, “to

the extent necessary to allow provisions of CCS and to address inadequate

contribution.” 75 Fed. Reg. at 53098-99.

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¶16 In pertinent part, the Lab Demonstration Project procedures include

providing employees with a description of the broadband level factors “so that

they know the basis on which their contribution is assessed.” Id. at 53090. They

also provide the methodology for assessing an employee’s contribution, warn that

inadequate contribution could lead to a reduction in pay or removal, and give the

employee a reasonable opportunity to improve on a CIP of at least 60 days while

“offer[ing] appropriate assistance to the employee .” Id. at 53090, 53093. It is

intended that these “procedures are similar to and replace those established in

5 C.F.R. part 432 pertaining to performance-based reduction in grade and removal

actions.” 75 Fed. Reg. at 53093. These provisions essentially mirror, in modified

form, the requirements of chapter 43 that an agency communicate to an employee

his position’s performance standards and critical elements, warn him of

inadequacies of his performance, and provide him with an adequate opportunity

to improve. Lee, 2022 MSPB 11, ¶ 13. The Lab Demonstration Project further

provides that management has the discretion to initiate a reduction in pay or

removal if the employee either does not improve during the CIP or his

contribution improves but deteriorates again within 2 years of the beginning of

the CIP. 75 Fed. Reg. at 53093. This is comparable to the requirement in a

chapter 43 action that an agency prove that the employee’s performance remained

unacceptable after an adequate improvement period. Lee, 2022 MSPB 11, ¶ 13.

The Lab Demonstration Project notes the similarity between it and

performance-based actions taken under 5 C.F.R. part 432. 75 Fed. Reg. at 53093.

¶17 Given the parallels between the requirements of an action under chapter 43

and those under the agency’s Lab Demonstration Project, we find that the

application of chapter 43 standards to the appellant’s removal, general ly, is not

inconsistent with the CCS. In instances when chapter 43 diverges from the Lab

Demonstration Project, we find that the administrative judge properly eliminated

or modified the chapter 43 requirements to the extent necessary to allow the

agency to implement its CCS. See 75 Fed. Reg. at 53098-99. For example,

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she did not require the agency to prove the appellant was held to “critical

elements,” as doing so is inconsistent with the agency’s rating system. She also

adopted the agency’s use of the term “contribution” instead of “performance.”

¶18 We note that one chapter 43 element is not applicable here. Specifically,

OPM’s approval is not required for a Lab Demonstration Project, and therefore

we disagree with the administrative judge’s determination that the agency was

required to prove this element of a chapter 43 performance-based charge. ID at 9;

2001 NDAA, Pub. L. No. 106-398, app. § 1114(a), 114 Stat. 1654A-315. In any

event, the administrative judge found that OPM approved the Lab Demonstration

Project, and the parties do not dispute this finding on review. Id.; 75 Fed. Reg.

at 53077. Therefore, any error was harmless. See Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is

not prejudicial to a party’s substantive rights provides no basis f or reversal of

an initial decision).

We must remand this appeal for further adjudication in light of

Santos.

¶19 Next, we must determine the extent to which Santos, 990 F.3d 1355, applies

to this appeal. The holding in Santos that an agency must prove that

an employee’s performance was unacceptable before instituting a PIP was

grounded in 5 U.S.C. § 4302(c)(6). Santos, 990 F.3d at 1360-61. Pursuant to

5 U.S.C. § 4703(a), an agency using a demonstration project is not limited by

inconsistent provisions of Title 5. Further, the Lab Demonstration Project

provides that chapter 43 and OPM’s implementing regulations are waived to the

extent necessary to allow for the agency’s CCS. 75 Fed. Reg. at 53098-99.

However, we discern no basis for concluding that 5 U.S.C. § 4302(c)(6) is

inconsistent with, or impedes, the agency’s CCS rating or performance-based

action processes. Section 4302(c)(6) of Title 5 and the Lab Demonstration

Project both contemplate that a CIP or PIP will only be implemented after a

determination is made that the employee’s contribution or performance was

11

unacceptable. 75 Fed. Reg. at 53093-94. The Lab Demonstration Project

explicitly describes the implementation of a CIP, which could lead to a removal

such as the appellant’s, as applying to an employee whose level of contribution

has already fallen below a particular threshold. 75 Fed. Reg. at 53093. Further,

in support of its proposed removal, the agency listed the appellant’s inadequate

contribution during the assessment period ending in September 2012, as well as

the fact that this contribution was the basis on which the appellant was placed on

a CIP. IAF, Tab 9, Part 1 at 92, 94. Therefore, we find that the agency’s burden

in this appeal includes proof that the appellant’s CIP was justified because his

pre-CIP performance was inadequate.

¶20 Because the parties did not have an opportunity to address this element of

the agency’s burden below, we remand the appeal for further adjudication. See

Lee, 2022 MSPB 11, ¶ 16. On remand, the administrative judge shall accept

evidence and argument, and hold a supplemental hearing if appropriate, on

whether the agency proved by substantial evidence that the appellant’s pre-CIP

contribution was inadequate. Id., ¶ 17. The administrative judge shall then issue

a new initial decision consistent with Santos. Id. If the agency makes the

additional showing required under Santos on remand, the administrative judge

may incorporate into her remand initial decision the prior findings from the initial

decision on other elements of the agency’s case with the exception of the matters

discussed below. Id.

We further remand for the administrative judge to determine whether

the CIP period provided the appellant an adequate opportunity to

improve and to apply the correct evidentiary standards for his

affirmative defenses.

¶21 On review, the appellant disputes the administrative judge’s findings that

the agency proved by substantial evidence that it provided him with a reasonable

opportunity to improve. PFR File, Tab 3 at 5-8. In particular, he argues that

he lacked the training and background he needed to perform his assigned

functions, and was disadvantaged in his performance because English was not his

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first language. Id. He notes that he “performed admirably for 29 years in

an engineering capacity” at the agency. Id. at 5, 8. In removing the appellant,

the agency primarily relied on his inadequate contribution following the CIP,

specifically during the period from October 2013 to September 2014. IAF, Tab 9,

Part 1 at 92-93. In finding that the agency provided the appellant with a

reasonable opportunity to demonstrate adequate contribution , the administrative

judge considered this period. ID at 15-16, 33-44. This was in error.

¶22 In some instances, such as here, an employee is able to perform at

an acceptable level while on an improvement plan, but his performance

subsequently deteriorates and again becomes unacceptable. Sullivan v.

Department of the Navy, 44 M.S.P.R. 646, 656 (1990), overruled on other

grounds, as recognized in Thomas v. Department of Defense , 117 F. App’x 722,

724-25 (Fed. Cir. 2004). Such an individual is known as a “roller coaster”

employee. Id. An agency that has implemented a PIP generally is not required to

give a roller coaster employee a new PIP prior to removing him provided it takes

its action based on instances of unacceptable performance in the same critical

elements for which the PIP was imposed that occurred within 1 year from the

inception of the PIP. 5 See id. at 659 (stating that an agency may take an action

based on instances of unacceptable performance following successful completion

of a PIP that occur within 1 year after the advanced notice of the PIP); 5 C.F.R.

§ 432.105(a)(2) (providing that when an employee performed acceptably during

the year following the beginning of an opportunity to demonstrate acceptable

5

The administrative judge implicitly found that under the agency’s Lab Demonstration

Project, the 1-year period was extended to 2 years. ID at 8, 12, 34. The parties do not

challenge this finding on review, and we find that it is supported by the record.

Specifically, the Lab Demonstration Project provides that, “[i]f the employee’s

contribution increases to a higher level [during the CIP] and is again determined to

deteriorate in any area within two years from the beginning of the opportunity period,

management has sole and exclusive discretion to initiate reduction in pay or removal

with no additional opportunity to improve.” 75 Fed. Reg. at 53093.

13

performance and his performance becomes unacceptable again , the agency must

provide a new opportunity to demonstrate acceptable performance before deciding

to remove or reduce him in grade under chapter 43). However, absent exceptions

not applicable here, in such instances, the agency must prove that the original PIP

constituted a reasonable opportunity to demonstrate acceptable pe rformance.

Sullivan, 44 M.S.P.R. at 659-60.

¶23 In finding that the agency provided the appellant with a reasonable

opportunity to improve, the administrative judge assessed the wrong period of

time. Specifically, she considered October 2013 to September 2014, the period of

inadequate contribution on which his removal was based, instead of the period of

the CIP. ID at 15-33. While considering this period is appropriate for

determining whether the appellant’s performance again deteriorated after the CIP,

the proper period for assessing the appellant’s opportunity to improve is the CIP

period itself, from January 14 to May 13, 2013. IAF, Tab 9, Part 2 at 220-22. It

is unclear whether the CIP provided an adequate opportunity for the appellant to

improve, as the administrative judge did not make any findings on this subject.

¶24 The administrative judge who oversaw the proceedings below and issued

the initial decision is no longer employed by the Board. When there is conflicting

testimony on a material issue, and a new administrative judge will decide the

case, the testimony should be heard again to permit her to make credibility

determinations based on witness demeanor. Stinson v. Department of Justice,

4 M.S.P.R. 521, 523 (1981). A factual dispute is “material” if, in light of the

governing law, its resolution could affect the outcome. Oram v. Department of

the Navy, 2022 MSPB 30, ¶ 9 n.5. Because the appellant disputes that he was

given an adequate opportunity to improve, on remand, the administrative judge

should accept evidence and argument, and hold a supplemental hearing,

to determine if the CIP provided the appellant with this opportunity. If the

agency makes the additional showing required under Santos on remand, and

proves that the CIP provided the appellant with an adequate opportunity to

14

demonstrate acceptable contribution, the administrative judge may incorporate the

findings from the prior initial decision on other elements of the agency’ s case in

the remand initial decision.

¶25 Finally, the appellant presented claims of age discrimination and EEO

reprisal below, which the administrative judge found unproven. ID at 44 -53. The

parties do not challenge this determination on review. Nonetheless, on remand

the administrative judge must further adjudicate these claims . The Federal

Circuit held in Santos, 990 F.3d at 1363-64, that the Board must consider

an appellant’s pre-PIP performance in the context of an affirmative defense when,

as here, the validity of the agency’s proffered reason for taking the

performance-based action is a factor in analyzing that claim. Pridgen v. Office of

Management & Budget, 2022 MSPB 31, ¶ 28 (holding that in determining

whether the agency has afforded the appellant a reasonable opportunity to

improve in a chapter 43 action, relevant factors include the nature of the duties

and responsibilities of the appellant’s position, including whether assignments of

work were made in a discriminatory manner). Further, in the period since the

administrative judge issued her initial decision, we clarified the evidentiary

standards and burdens of proof for age discrimination and EEO reprisal claims in

Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30-33. In the proceedings on remand, the

administrative judge should advise the parties of the standards set forth in

Pridgen, provide them with an opportunity to present argument and evidence, and

hold a supplemental hearing on the appellant’s affirmative defenses to permit the

parties to address these standards, as well as any claims regarding his pre-CIP

performance. She should then apply the standards set forth in Santos and Pridgen

in the remand initial decision. 6 ID at 21-22, 24; PFR File, Tab 3 at 7.

6

The appellant also appears to dispute the administrative judge’s determination that his

demeanor and testimony was “indirect and evasive.” PFR File, Tab 3 at 8; ID at 29-30.

The Board must defer to an administrative judge’s credibility determinations when they

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ORDER

¶26 For the reasons discussed above, we GRANT the petition for review,

VACATE the initial decision, and REMAND this case to the regional office for

further adjudication in accordance with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at

a hearing; the Board may overturn such determinations only when it has “sufficiently

sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002). The appellant has not offered such reasons here and we therefore

decline to overturn the administrative judge’s credibility findings .