Kelly Lee v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 11

Docket No. DE-0432-14-0448-I-1

Kelly J. Lee,

Appellant,

v.

Department of Veterans Affairs,

Agency.

May 12, 2022

Norman Jackman, Esquire, Lincoln, New Hampshire, for the appellant.

Beth K. Chesney, St. Louis, Missouri, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

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

affirmed the agency’s action removing her for unacceptable performance pursuant

to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition

for review, VACATE the initial decision, and REMAND the appeal to the Denver

Field Office for further adjudication consistent with Santos v. National

Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).

BACKGROUND

¶2 The appellant was employed as a Program Support Assistant at the agency’s

Central Plains Consolidated Patient Account Center (CPCPAC). Initial Appeal

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File (IAF), Tab 10 at 71. On August 6, 2013, the agency placed the appellant on

a performance improvement plan (PIP) to address her unacceptable performance

in the critical element of Productivity. IAF, Tab 9 at 11-16, 30-32. At the end of

the PIP, the agency proposed the appellant’s removal for unacceptable

performance in four of the seven subcomponents of the Productivity critical

element. IAF, Tab 10 at 13-64.

¶3 After providing the appellant with an opportunity to respond to the

proposed removal, the agency issued a decision removing her for failing to meet

the performance standards for the Productivity critical element of her position

during the PIP period. Id. at 65-68. The appellant filed a timely Board appeal of

her removal. IAF, Tab 1. During the adjudication of the appeal, the appellant

stipulated that: (1) the agency’s performance appraisal system was approved by

the Office of Personnel Management (OPM); (2) her performance standards were

valid; (3) her performance standards were communicated to her; (4) she was

advised that her performance was unacceptable and warned of her performance

inadequacies; and (5) her performance under the PIP was unaccept able.

IAF, Tabs 6, 36, 38 at 4. A hearing was scheduled for the sole remaining issue on

appeal, which was whether the appellant was given a reasonable opportunity

under the PIP to improve her performance above an unacceptable level.

IAF, Tab 36 at 3.

¶4 After holding a telephonic hearing, the administrative judge issued an initial

decision affirming the appellant’s removal, finding in relevant part that the

agency proved by substantial evidence that the appellant’s performance was

unacceptable after she was given a reasonable opportunity to improve.

IAF, Tab 51, Initial Decision (ID) at 12. The appellant has filed a timely petition

for review of the initial decision. Petition for Review (PFR) File, Tab 1.

In her petition for review, the appellant does not challenge merits of the initial

decision, but instead argues that the administrative judge abused her discretion in

connection with the appellant’s allegation that the agency violated the

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administrative judge’s sequestration order during the hearing. Id. The agency

has filed a response in opposition to the petition for review, PFR File, Tab 4,

and the appellant has filed a reply, PFR File, Tab 5.

ANALYSIS

The administrative judge did not abuse her discretion in denying the appellant’s

motion regarding the sequestration of witnesses.

¶5 During a supplemental prehearing conference, the appellant’s counsel

indicated that he could not be present at the agency’s facility for the hearing and

elected to convert the scheduled video hearing to a telephonic hearing.

IAF, Tab 39. The administrative judge issued an order providing instructions for

the telephonic hearing, including the requirement that all witnesses participating

in the hearing be sequestered. Id. at 1-2. In a summary of the supplemental

prehearing conference, the administrative judge noted again that all witnesses

were to be sequestered during the telephonic hearing. 1 IAF, Tab 40.

¶6 The telephonic hearing was held on April 29-30, 2015. IAF, Tab 45,

Hearing Compact Disc. At the start of the first day of the telephonic hearing, the

administrative judge reminded the parties, for the third time, of the requirement

that the witnesses be sequestered such that no witness other than the testifying

witness should be present in the room at any given time. Id. For the first day of

the hearing, agency counsel appeared from a conference room at the CPCPAC.

IAF, Tab 46 at 8-9. Three of the five agency witnesses testified telephonically

from the same conference room. Id. at 8-11, 13-14. One additional agency

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The administrative judge’s written orders did not specify what it meant to sequester

witnesses. However, at the beginning of the hearing, the administrative judge indicated

that she had discussed the sequestration requirement with the parties in detail b efore

going on the record. IAF, Tab 45, Hearing Compact Disc. Specifically, she stated that

she had informed the parties that no witness could be present in the room for the

testimony of another witness and that no witness could be advised during the hea ring

about the testimony of another witness. Id.

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witness began his telephonic testimony from the conference room, but finished it

from another office due to technical issues. Id. at 15. The remaining agency

witness testified telephonically from his office at another facility. Id. at 8-9.

¶7 A few days after the close of the hearing, the appellant filed a motion for

sanctions against the agency in the form of striking all testimony of the agency’s

witnesses and granting her default judgment because the agency allegedly

violated the sequestration order. IAF, Tab 43. She also asked the administrative

judge to order the agency to preserve video surveillance tapes from near the

conference room where the hearing was held, along with other evidence. Id.

Accompanying the motion was a signed affidavit from one of the appellant’s

witnesses who was present at the CPCPAC on the first day of the hearing, stating

that she “perceived” that all of the agency’s witnesses were present in the room

while each witness testified because she heard multiple voices through the

conference room wall. Id. at 10-11. The agency filed a response to the motion,

denying any violation of the sequestration orders. IAF, Tab 46 at 4-7.

The agency provided the signed affidavits of agency counsel and four agency

witnesses indicating that no witness, other than the one testifying at that time,

was present during each witness’s testimony. Id. at 8-9, 11, 13-15. 2

After reviewing the parties’ submissions, the administrative judge denied the

appellant’s motion. IAF, Tab 50 at 1-2.

¶8 On petition for review, the appellant argues that the administrative judge

abused her discretion by: (1) denying the motion to strike without holding a

hearing on the motion; (2) failing to find that the agency violated the

sequestration order; and (3) failing to grant the appellant’s request for an order

2

As noted above, one of the agency’s witnesses completed part of his testimony in a

separate room away from agency counsel. IAF, Tab 46 at 15. He indicated in his

affidavit that he was the only person in the room during the latter portion of his

testimony. Id.

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preserving the conference room surveillance videos and agency cellular phone

and computer records. PFR File, Tab 1, Tab 5 at 3. The appellant requests that

the Board remand the case with an order to the administrative judge to review the

conference room surveillance tapes if they still exist or to enter judgment in the

appellant’s favor if they no longer exist. PFR File, Tab 5 at 3. In response, the

agency argues that the administrative judge properly denied the appellant’s

motion. PFR File, Tab 4. The agency asserts that the administrative judge

weighed the competing affidavits and rightfully gave less weight to the

appellant’s witness’s claim that she “perceived” the presence of additional

individuals in the conference room in light of her concession that she “did not

physically see them.” Id. at 6; IAF, Tab 43 at 11.

¶9 Absent an abuse of discretion, the Board will not reverse an administrative

judge’s determination regarding sanctions. See Leseman v. Department of the

Army, 122 M.S.P.R. 139, ¶ 6 (2015). Additionally, an administrative judge has

wide discretion to control the proceedings before her, including the authority to

exclude testimony she believes would be irrelevant, immaterial, or repetitious.

Sigler v. Department of the Army, 63 M.S.P.R. 103, 110 (1994); Brownscombe v.

Office of Personnel Management, 37 M.S.P.R. 382, 386 (1988), aff’d, 871 F.2d

1097 (Fed. Cir. 1989) (Table). Administrative judges also have substantial

discretion over convening a hearing and ruling on motions. Smith v. Department

of the Army, 41 M.S.P.R. 110, 113 (1989); 5 C.F.R. §§ 1201.41(b)(6), (8).

Given the substantial discretion administrative judges have to control the

proceedings before them, the Board will not reverse an administrative judge’s

decision not to hold a hearing on a motion requesting sanctions absent an abuse of

discretion. See generally Leseman, 122 M.S.P.R. 139, ¶ 6.

¶10 Here, following the appellant’s submission of her motion, the administrative

judge afforded the agency an opportunity to respond and the appellant an

opportunity to reply to the response. IAF, Tab 44. The agency filed a response,

IAF, Tab 46, but the appellant did not avail herself of the opportunity to file a

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reply. Additionally, although the appellant argues that the administrative judge

erred by failing to hold a hearing on the veracity of the competing affidavits, the

appellant did not request such a hearing in the motion itself, or at any time prior

to the close of the record on the motion. PFR File, Tab 1 at 5; IAF, Tab 43.

Further, the appellant has not identified a Board regulation requiring that an

administrative judge hold a hearing to resolve a post-hearing request for

sanctions.

¶11 In reaching her conclusion that her sequestration orders were not violated,

the administrative judge reviewed the parties’ affidavits. IAF, Tab 50 at 1 -2.

In making her determination, the administrative judge relied heavily on the fact

that the appellant’s sole affiant admitted that at no time could she physically see

any of the agency’s witnesses inside the conference room, relying instead on her

“perception” that they were in the same room based on the voices she heard

coming from the room. Id. at 1 (quoting IAF, Tab 42 at 11). Weighed against

this affidavit, the administrative judge credited the affidavits of agency counsel

and the agency’s witnesses stating that no other witnesses were in the room

during the hearing testimony of any witness. IAF, Tab 50 at 2.

The administrative judge also identified four individuals who were present and

speaking at various times on the telephonic conference call along with each

witness, who may have accounted for any additional voices coming from the

conference room. Id. Finally, the administrative judge noted that her review of

the hearing recording did not reveal any unexplained or unusual voices, noises, or

activities suggestive of the presence of additional individuals in the conference

room. Id.

¶12 Having reviewed the appellant’s claim, we find that the administrative

judge did not abuse her discretion in determining that the agency had not violated

the sequestration orders. We further conclude that the administrative judge acted

within her discretion when she denied, without holding an additional hearing, the

appellant’s motion for default judgement and request to strike the testimony of all

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agency witnesses. We further find no abuse of discretion in her denying the

appellant’s request for an order preserving video surveillance and other evidence

related to the motion.

Remand is required in light of Santos.

¶13 In affirming the appellant’s performance-based removal, the administrative

judge cited the Board’s precedent setting forth the relevant legal standard for such

actions under chapter 43. ID at 4-5. Under that standard, the 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 her position; (3) the

appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the

agency warned the appellant of the inadequacies in her performance during the

appraisal period and gave her an adequate opportunity to demonstrate acceptable

performance; and (5) after an adequate improvement period, the appellant’s

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

Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 & n.5 (2013); see 5 U.S.C.

§ 7701(c)(1)(A). The Board has consistently interpreted that standard as not

requiring an agency to prove that an employee was performing unacceptably

before being given an opportunity to demonstrate acceptable performance via

placement on a PIP. Thus, the Board has declined to examine an employee’s

pre-PIP performance in analyzing a performance-based action under chapter 43.

See, e.g., Thompson v. Department of the Navy, 89 M.S.P.R. 188, ¶ 19 (2001);

Clifford v. Department of Agriculture, 50 M.S.P.R. 232, 234 n.1 (1991); Wilson v.

Department of the Navy, 24 M.S.P.R. 583, 586-87 (1984).

¶14 Although the administrative judge properly applied existing precedent as of

the date she issued the initial decision, our reviewing court issued a precedential

decision recognizing an additional element of an agency’s burden of proof under

chapter 43 while this matter was pending before the Board on petition for review.

In Santos, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held

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for the first time that to support an adverse action under chapter 43, an agency

“must justify institution of a PIP” by showing that the employee’s performance

was unacceptable before the PIP. Santos, 990 F.3d at 1360-61. The court noted

that the statute authorizes actions against employees “who continue to have

unacceptable performance” after a PIP and reasoned that proving continued

unacceptable performance requires a showing that the performance was

unacceptable both prior to and during the PIP. Id. (quoting 5 U.S.C.

§ 4302(c)(6)). The court found that the Board’s failure to consider the appellant’s

pre-PIP performance in Santos was an abuse of discretion and it remanded the

appeal for further proceedings under the modified legal standard.

Santos, 990 F.3d at 1363-64.

¶15 With limited exceptions not applicable here, decisions of the Federal Circuit

are binding on the Board. See Fairall v. Veterans Administration, 33 M.S.P.R.

33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we modify the standard

applicable to chapter 43 actions in light of Santos. To defend an action under

chapter 43, the 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 her 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 her performance during the appraisal

period and gave her 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.

¶16 The Federal Circuit’s new precedent in Santos applies to all pending cases,

regardless of when the events at issue took place. See Porter v. Department of

Defense, 98 M.S.P.R. 461, ¶ 14 (2005) (citing Reynoldsville Casket Co. v. Hyde,

514 U.S. 749, 752, 759 (1995)). The parties did not have an opportunity before

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the administrative judge to address the modified legal standard in light of Santos.

We therefore remand this case for further adjudication of the appellant’s removal

under the standard set forth in Santos. 3 See Santos, 990 F.3d at 1363-64

(remanding the appeal for further proceedings under the modified legal standard);

Blaha v. Office of Personnel Management, 106 M.S.P.R. 265, ¶ 11 (2007)

(remanding an appeal where the parties were not informed of t he correct legal

standard).

¶17 On remand, the administrative judge shall accept evidence and argument on

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

performance was unacceptable. The administrative judge shall hold a

supplemental hearing if appropriate. The administrative judge shall then issue a

new initial decision consistent with Santos. If the agency makes the additional

showing required under Santos on remand, the administrative judge may

incorporate her prior findings on other elements of the agency’s case in the

remand initial decision. See Hall v. Department of Transportation, 119 M.S.P.R.

180, ¶ 8 (2013).

3

While this matter was pending on petition for review, Congress enacted the

Department of Veterans Affairs Accountability and Whistleblower Protection Act of

2017 (VA Accountability Act), Pub. L. No. 115-41, 131 Stat. 862 (2017). Among other

things, the VA Accountability Act provided the Department of Veterans Affairs with an

expedited, less rigorous process for removing, demoting, or suspending its employees

for inadequate performance or misconduct. The VA Accountability Act thereby gave

the agency “an expedited, less rigorous alternative to traditional civil service adverse

action appeals” under chapter 43 and chapter 75 of title 5. Sayers v. Department of

Veterans Affairs, 954 F.3d 1370, 1374 (Fed. Cir. 2020). However, the Federal Circuit

has held that the VA Accountability Act does not apply to disciplinary action based on

conduct or performance occurring before its enactment, id. at 1380-82, and no other

court of appeals has reached a contrary conclusion. Therefore, the VA Accountability

Act may not be applied to the appellant’s removal in this case because it is based on

performance that occurred several years before the Act went into effect. Accordingly,

the appellant’s removal must be adjudicated under chapter 43 on remand.

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ORDER

¶18 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.