Elizabeth Barnes v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELIZABETH PARKER BARNES, DOCKET NUMBER

Appellant, DC-0432-15-1013-I-1

v.

DEPARTMENT OF THE ARMY, DATE: February 14, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Elizabeth Parker Barnes, Vinton, Virginia, pro se.

Mark R. Higgins, Norfolk, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

sustained her removal based on 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 Washington

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Regional Office for further adjudication consistent with Santos v. National

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

BACKGROUND

¶2 The appellant encumbered the position of Architect, GS -12. Initial Appeal

File (IAF), Tab 16 at 85-90. For the period ending October 31, 2013, the agency

rated her performance as “needs improvement,” id. at 57. Thereafter, the agency

found her work on a particular project to be unsatisfactory, id. at 68, 70, and

advised her that her performance on certain of her objectives 2 needed

improvement and that she would be placed on a performance improvement plan

(PIP), id. at 70. At the end of January 2014, the appellant was on sick leave and

then on other types of leave until she returned to duty on May 29, 2014, under a

reasonable accommodation arrangement allowing her to telework 4 days a week,

later reduced to 3 days a week. IAF, Tab 15 at 69. For the period November 1,

2013 to August 15, 2014, but excluding the time she was on leave, the agency

rated the appellant’s performance as failing in a number of her objectives. IAF,

Tab 43 at 4-10.

¶3 On October 10, 2014, the appellant’s supervisor notified her that she was

not performing her duties at an acceptable level and that she was being placed on

a 60-day PIP to help her improve her performance. Id. at 24-33. The supervisor

set forth six objectives in which he indicated that the appellant’s performance

needed to improve; Technical Management, Responsibility/Accountability,

Working Relationships, Communication, Be Aware, and Working Within the

Project Management Best Practices as a Project Delivery Team Member . As to

each, the supervisor set forth the observed issues with the appellant’s

performance, and explained what she must do to improve. Id. The supervisor

stated that he would meet with the appellant weekly to discuss her responsibilities

2

These “objectives” correspond to critical elements, as set forth in 5 C.F.R.

§ 432.103(b).

3

under the listed objectives and to address deficiencies, that the meetings would be

documented, that he would review the appellant’s work, “TEE-UP”/mock up

drawings, work breakdown structures that would be used for listing task

assignments as necessary, and that he would attend as many project team and

individual meetings as possible to view her performance in various settings, id.

at 32. On December 10, 2014, the agency advised the appellant that, although she

had shown some improvement, she was still failing in the six objectives, and that

the PIP would be extended until January 22, 2015. IAF, Tab 15 at 9 -12.

¶4 On January 22, 2015, the appellant’s supervisor proposed her removal for

Failure during Performance Improvement Period; specifically, for failing in her

objectives, with the exception of the Be Aware objective. IAF, Tab 12 at 82-90.

After receiving the appellant’s written reply, id. at 64-71, the Deputy Division

Chief requested clarification from the appellant’s supervisor on certain issues,

after which the Deputy Division Chief provided to the appellant the information

he had received along with a new notice of proposed removal, including an

additional opportunity to reply, id. at 52-53. Thereafter, the Chief issued a letter

of decision notifying the appellant that she was removed from her position, id. at

39-43, 36.

¶5 The appellant challenged the action by filing a timely formal complaint of

discrimination in which she alleged that the agency’s action was due to

discrimination because of sex, age, and disability, as well as retaliation for prior

equal employment opportunity (EEO) activity. Id. at 21-34. When 120 days had

passed without a final decision by the agency, the appellant filed a Board appeal ,

IAF, Tab 1, in which she argued that the PIP and her performance standards were

invalid and renewed her affirmative defenses, id. at 6. She requested a hearing,

id. at 2. During the processing of the appeal, the appellant added a claim that the

agency’s action was also in retaliation for her protected whistleblowing activity.

IAF, Tab 52 at 2.

4

¶6 Thereafter, the administrative judge issued an initial decision. 3 IAF,

Tab 62, Initial Decision (ID). He first found that the appellant did not challenge

the Office of Personnel Management (OPM)’s approval of the agency’s

performance appraisal system and that therefore that matter was not at issue in the

appeal. 4 ID at 4 n.4. The administrative judge next examined the appellant’s

performance standards, IAF, Tab 16 at 58-62, finding that the agency proved by

substantial evidence that they were valid in that they were neither impermissibly

vague nor ambiguous, but rather reasonable and attainable, and that they were

clearly communicated to the appellant, 5 ID at 4-10. The administrative judge then

found that the agency proved by substantial evidence that the appellant was

provided a reasonable opportunity to demonstrate acceptable performance. ID

at 10-15. Specifically, he found, considering the nature of the duties and

responsibilities of the appellant’s position as an architect, that the 102 days she

had between October 10, 2014 and January 20, 2015, was a reasonable amount of

time in which to show sufficient improvement, that she worked under a detailed

PIP, and that she was afforded considerable written feedback on her work and

weekly meetings to provide assistance. ID at 15. The administrative judge then

considered the appellant’s performance during the PIP. ID at 15-17. Relying on

3

The administrative judge found that the appellant filed her appeal after the issuance of

a Final Agency Decision (FAD) on her EEO complaint. ID at 1 n. 1, 2. However, there

is no indication that the agency issued a FAD. Rather, the appellant timely filed her

appeal when the agency had not issued a FAD within 120 days. 5 C.F.R.

§ 1201.154(b)(2). Any such error by the administrative judge, however, did not

prejudice the appellant’s substantive rights. Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984).

4

The agency did, however, submit evidence that OPM approved its performance

appraisal system. IAF, Tab 12 at 7.

5

To the extent that the administrative judge considered in his analysis the validity of

the appellant’s performance standards under the Be Aware objective, he need not have

done so since the proposing official found that the appellant’s performance under t hat

objective during the PIP was acceptable. IAF, Tab 12 at 89. However, any such error

did not prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. at 282.

5

what he considered the credible and probative testimony of the appellant’s

supervisor, the administrative judge found that the appellant failed to complete

either of the two projects she was assigned during the PIP, and that she exhibited

rude and impolite behavior toward other members of the architectural section. ID

at 16. The administrative judge concluded that the agency established by

substantial evidence that the appellant’s performance in the five objectives was

unacceptable. ID at 17. The administrative judge then addressed the appellant’s

affirmative defenses. He found that she failed to establish her claims of disability

discrimination, ID at 19-22, age or sex discrimination, ID at 23-25, retaliation for

her protected EEO activity, ID at 25-29, and retaliation for protected

whistleblowing activity, ID at 29-31. Accordingly, the administrative judge

affirmed the agency’s action. ID at 1, 31-32.

¶7 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 4, the agency has filed a response, PFR File, Tab 5, and t he appellant

has filed a reply, PFR File, Tab 7.

ANALYSIS

¶8 In her petition for review, the appellant has chosen to address her concerns

with the initial decision by presenting “responses” to its individual paragraphs,

beginning with paragraph 1 of the Analysis and Findings section and continuing

through paragraph 110, which occurs partway through the administrative judge’s

analysis of the appellant’s claim of discrimination based on age and sex. PFR

File, Tab 1 at 7-31. Some of these “responses” are simply disagreements with

specific factual findings in the initial decision that have not been shown to be

material to the disposition of the appeal. We have not addressed these and other

such “responses” because they do not meet the Board’s criteria for granting a

petition for review. 5 C.F.R. § 1201.115. However, in order to facilitate our

analysis of the appellant’s petition for review, we have grouped some of her

“responses” to the extent she has raised valid objections to the initial decision.

6

¶9 As noted, consistent with the Federal Circuit’s decision in Santos, 990 F.3d

at 1360-63, we are remanding this appeal for further adjudication. In Santos, the

court held for the first time that, in addition to the elements of a chapter 43 case

set forth by the administrative judge, an agency must also show that the initiation

of a PIP was justified by the appellant’s unacceptable performance before the

PIP. Id. Prior to addressing the remand, we address the administrative judge’s

findings on the elements of a chapter 43 appeal as they exist ed at the time of the

initial decision, the findings regarding the appellant’s affirmative defenses, and

the appellant’s arguments on review.

The appellant failed to show that the administrative judge erred, under the law in

effect at the time, in finding that the agency satisfied its burden to prove that the

appellant’s performance was unacceptable.

¶10 At the time the initial decision was issued, the Board’s case law stated that,

in a performance-based action under 5 U.S.C. chapter 43, an agency must

establish by substantial evidence that: (1) OPM approved its performance

appraisal system; (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 of her performance during the appraisal period and

gave her a reasonable opportunity to improve; and (5) the a ppellant’s

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

Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). As set forth

below, we affirm the administrative judge’s findings as to each of these elements.

¶11 On review, the appellant challenges the administrative judge’s finding that

the agency proved that her performance standards were valid, arguing that, during

the PIP, she was required to perform the duties of “another position,” that of

Design Team Leader (DTL) in addition to her normal duties as a Lead Design

Architect (LDA). PFR File, Tab 4 at 8-11, 13-14, 16, 21. The appellant

acknowledges, however, that this is not an argument she raised below. PFR File,

7

Tab 7 at 6. In fact, she states that she was not aware, even at the hearing, that, in

her view, her performance standards required her to combine the duties and

responsibilities of the DTL and the LDA positions, and that it was not until she

read the initial decision that “it occurred to [her] that it would be prudent to

re-examine the actual performance criteria [her supervisor] had set out rather than

just rely on his characterization of it in court.” Id. The Board generally will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previou sly available

despite the party’s due diligence. Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980). Because the appellant has not made such a showing,

we have not considered this claim.

¶12 The Board will defer to managerial discretion in determining what agency

employees must do to perform acceptably in their positions when, as here, the

agency has shown that the performance standards, to the maximum extent

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

objective criteria related to the job in question and are reasonable, realistic,

attainable, and clearly stated in writing. Lee v. Environmental Protection Agency,

115 M.S.P.R. 533, ¶ 29 (2010). Agencies are entitled to use their managerial

discretion in establishing the performance standards by which an employee’s

performance is to be measured. Thompson v. Department of the Navy,

89 M.S.P.R. 188, ¶ 5 (2001).

¶13 In finding that the appellant’s performance standards were valid and

properly communicated to her, the administrative judge relied upon the testimony

of the appellant’s supervisor to the effect that all architects with the agency have

the same performance elements and standards, that the PIP notified her

specifically of what she had to do to bring her performance up to the required

level and gave specific instructions for behaviors that would allow for successful

performance, and that she appeared to understand the objectives when he

discussed them with her. Hearing Compact Disc (HCD) I (testimony of the

8

appellant’s supervisor); ID at 10. Our review of the performance standards

supports the appellant’s supervisor’s testimony regarding their reasonableness

and attainability. IAF, Tab 16 at 58-62. Beyond her mere disagreement with the

administrative judge’s findings, the appellant has not shown that the

administrative judge erred in finding that the agency proved by substantial

evidence that her performance standards were valid and fairly communicated to

her.

¶14 The appellant also challenges the administrative judge’s finding that the

agency proved by substantial evidence that it afforded her a reasonable

opportunity to improve her performance. PFR File, Tab 4 at 20-22. In

determining whether an agency has afforded an employee a reasonable

opportunity to demonstrate acceptable performance, relevant factors include the

nature of the duties and responsibilities of the employee’s position, the

performance deficiencies involved, and the amount of time which is sufficient to

provide the employee with an opportunity to demonstrate acceptable performance.

Lee, 115 M.S.P.R. 533, ¶ 32.

¶15 The appellant argues that her supervisor “sabotaged her projects as a pretext

to give her a poor performance evaluation,” PFR File, Tab 4 at 20, and that she

had no opportunity to improve before the evaluation and/or PIP meeting, id. at 16.

However, the performance evaluation to which she refers predated the PIP by at

least 60 days, IAF, Tab 43 at 4-10, and it therefore had no bearing on the

reasonableness of the opportunity to improve that began on October 10, 2014. Id.

at 24-33. 6 The appellant also contends that, at PIP meetings, her supervisor

provided no guidance on how she should proceed. PFR File, Tab 4 at 20. Her

supervisor, however, recalled that the appellant reacted negatively to his

guidance. HCD I (testimony of the appellant’s supervisor). The appellant also

challenges the administrative judge’s findings as to the roof project she was

6

This argument may, however, be relevant to the issues before the administrative judge

on remand regarding the appellant’s pre-PIP performance.

9

assigned during the PIP, arguing that she disagreed with her supervisor regarding

what needed to be done, and that the disagreement caused friction between her

coworkers and her. PFR File, Tab 4 at 21-22.

¶16 Here, the appellant’s initial 60-day PIP was extended for an additional 6

weeks. IAF, Tab 15 at 9-12. During that lengthy time, the appellant’s supervisor

provided her considerable written feedback, IAF, Tab 14, and met with her

weekly to discuss her progress on her assigned tasks. The administrative judge

considered the appellant’s claims, ID at 13-15, but found, based on the record as a

whole, that the agency proved by substantial evidence that it afforded the

appellant not only a reasonable amount of time (102 days) but also an otherwise

reasonable opportunity to improve her performance, ID at 10-15. Bearing in

mind that the agency need only prove the elements of its case by substantial

evidence, 7 5 C.F.R. § 1201.56(b)(1)(i), we find that the appellant’s mere

disagreement with the administrative judge’s findings in this regard does not

provide a basis for us to disturb them.

¶17 Next, the appellant challenges the administrative judge’s finding that the

agency proved by substantial evidence that her performance was unacceptable.

PFR File, Tab 4 at 23-28. For example, she alleges that details surrounding the

“Ft. Gordon DFAC project 65% submittal” caused delays that were beyond her

control. However, the details she describes all occurred well before the PIP

period. Id. She asserts that certain of her supervisor’s statements regarding her

work assignments are “inaccurate” and claims that she completed them, but she

has pointed to no evidence that supports her assertion. Id. at 28. The appellant

also disputes the testimony of her supervisor that she exhibited rude and impolite

behavior toward other members of the architectural section, arguing that he “did

7

Substantial evidence is defined as that 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. It is a lower standard

of proof than preponderant evidence. 5 C.F.R. § 1201.4(p).

10

nothing to stop [] co-workers from yelling in [her] face,” id., but, again, she has

pointed to no evidence that supports her claim.

¶18 In finding that the agency proved by substantial evidence that the

appellant’s performance was unacceptable under the five objectives during the

PIP, as extended, the administrative judge correctly found that the substantial

evidence standard does not require an agency to produce evidence that is more

persuasive than that presented by the appellant. Leonard v. Department of

Defense, 82 M.S.P.R. 597, ¶ 5 (1999); ID at 17. The administrative judge

considered not only the testimony of the appellant’s supervisor, which he found

credible and probative, HCD I (testimony of the appellant’s supervisor); ID

at 15-17, but also the appellant’s testimony, which he found, in fact, confirmed

many of the communication difficulties observed b y her supervisor and the fact

that she was unable to resolve them, and that it also highlighted her inability to

deal with changing deadlines or coordinate assignments with other team

members, ID at 17. We have considered the appellant’s arguments on review, but

discern no reason to weigh the evidence or substitute our assessment of the record

evidence for that of the administrative judge. Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative

judge’s findings when he considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions); Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same); Haebe v. Department of

Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the Board may

overturn credibility determinations only when it has “sufficiently sound” reasons

for doing so). We find that the appellant’s mere disagreement with the

administrative judge’s findings and credibility determinations does not warrant

full review of the record by the Board. Gager v. Department of Commerce,

99 M.S.P.R. 216, ¶ 5 (2005); Weaver v. Department of the Navy, 2 M.S.P.R. 129,

133-34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

11

The appellant did not show that the administrative judge erred in finding that she

failed to establish her affirmative defenses.

¶19 Next, the appellant challenges on review the administrative judge’s findings

that she failed to establish that her removal was due to discrimination based on

disability, 8 under the theories of denial of reasonable accommodation and

disparate treatment. PFR File, Tab 4 at 28-31. An appellant may establish a

disability discrimination claim based on a failure to accommodate by showing

that (1) she is a disabled person; (2) the action appealed was based on her

disability; and (3) to the extent possible, there was a reason able accommodation

under which she believes she could perform the essential duties of her position.

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 35 (2016),

clarified by Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 23-24.

¶20 The appellant challenges the administrative judge’s finding that her original

request to telework was unrelated to any issue of reasonable accommodation.

PFR File, Tab 4 at 28. The administrative judge further found, however, and the

appellant does not dispute, that she did later request to telework as a reasonable

accommodation for her disability, and that the agency granted her request, first

allowing her to telework 4 days a week, although later reducing the number of

days to 3, an arrangement that was in place for the duration of the PIP, as

extended. ID at 19-21. For the same reason, the appellant’s claim, even if true,

that the accommodation process took longer than usual, PFR File, Tab 4 at 25,

does not establish error in the administrative judge’s findings and conclusion.

The appellant also challenges the administrative judge’s recitation of the

testimony of the Head of the Civilian Personnel Office regarding the appellant’s

8

The nature of the appellant’s claimed disability is not addressed in the initial decision,

ID at 17-23, or in any of the pleadings on review, PFR File, Tabs 4, 6 -7. Nonetheless,

in her EEO complaint, which gave rise to this appeal, the appellant claimed mental

disability, “Anxiety, [Post-Traumatic Stress Disorder],” and physical disability,

“illness.” IAF, Tab 31 at 20.

12

request to be a leave donor recipient, and the resultant confusion and delay,

acknowledged by the agency, resulting from its use of the appellant’s middle

name as her last name. Id. at 29-30. The appellant does not suggest, however,

that the matter remained unresolved during the PIP. Id. The appellant also

disputes the administrative judge’s finding that telework was not typically

permitted for architects, id. at 30, but, even if the appellant is correct in her

assertion that telework was typically granted to architects on an ad -hoc basis, it

does not advance her discrimination claim because the agency granted her

requested reasonable accommodation, which was in effect during the pendency of

the PIP. Beyond her mere disagreement, the appellant has not shown that the

administrative judge erred in finding that, assuming the appellant is disabled, she

failed to establish that her removal was based on a failure to accommodate. ID

at 22-23.

¶21 The appellant also challenges the administrative judge’s finding that she did

not establish her claim of disparate treatment based on disability. Here, the

appellant acknowledges that no other architects in the architectural section were

removed during her tenure. Further, although she refers to a particular employee

in an effort to show that “I was singled out for removal,” she does not suggest

that that employee had performance issues or was otherwise similarly situated to

her. PFR File, Tab 4 at 30-31; Davis v. U.S. Postal Service, 120 M.S.P.R. 122,

¶ 16 (2013). Nor has the appellant shown that her disability was a motivating

factor or but-for cause in her removal. Forte v. Department of the Navy,

123 M.S.P.R. 124, ¶ 33 (2016). Therefore, the appellant has failed to show that

the administrative judge erred in finding that she did not establish her claim of

disparate treatment based on her disability. See Pridgen, 2022 MSPB 31, ¶ 40.

¶22 The appellant does not, on review, challenge with any spe cific claim of

error the administrative judge’s finding that she failed to establish that the

agency’s action was based on discrimination due to age or sex. PFR File, Tab 4

at 31. The administrative judge applied the burden-shifting analysis under

13

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), finding that

the appellant’s anecdotal recollections 9 failed to show employment decisions

personal to her that were based on her sex or age and that, based on the record as

a whole, she failed to present evidence that similarly situated coworkers not in

her protected class who suffered from failing performance were treated more

favorably. The administrative judge found no evidence that the decision to

remove the appellant was motivated by animus toward her due to her age or sex,

and that the agency’s explanation for the action, the appellant’s failure to meet

her performance requirements, was not shown to be false or some façade to hide

an improper motive. ID at 23-25. We find no reason to disturb the administrative

judge’s decision, as it is consistent with our recent holding in Pridgen,

2022 MSPB 31, ¶ 25 .

¶23 Finally, the appellant argues that certain evidence was available but was not

presented due to the incompetence of her non-attorney representative, his

unfamiliarity with her case, and his focus on irrelevant issues . PFR File, Tab 4

at 6, Tab 7 at 5. The administrative judge marked proffered timely filed exhibits

for identification, but stated that they “must be introduced at the hearing,” at

which time he would rule on their admissibility. IAF, Tab 52. To the extent the

appellant’s representative failed to introduce any such exhibits, an appellant is

responsible for the errors of her chosen representative. Sofio v. Internal Revenue

Service, 7 M.S.P.R. 667, 670 (1981). The appellant appeals to the Board for

consideration on the basis that she is now pro se on petition for review. PFR File,

Tab 7 at 4. While it is true that pro se appellants are not required to plead issues

with the precision of an attorney in a judicial proceeding, Gilliam v. Office of

Personnel Management, 91 M.S.P.R. 352, ¶ 7 (2002), the appellant in this case

9

For example, the administrative judge considered the appellant’s claims that she

overheard her supervisor tell another employee that she was being selected to do certain

work because she was “young and energetic,” that he thought younger people were

more adept at learning a 3-D modeling program, and that the appellant was not often

asked to socialize with other male engineers. ID at 24-25.

14

was represented, initially by counsel, IAF, Tab 1, and th ereafter by a non-attorney

representative, IAF, Tab 26, during the processing of her appeal, up to and

including at the hearing. In any event, the consideration afforded a pro se

appellant does not extend to a less strict interpretation of the law. 10

Remand is necessary to afford the parties an opportunity to submit evidence and

argument regarding whether the appellant’s placement on a PIP was proper.

¶24 As noted, during the pendency of the petition for review in this case, the

United States Court for the Federal Circuit issued Santos, 990 F.3d at 1360-63, in

which it held that, in addition to the five elements of the agency’s case, as set

forth above, the agency must also justify the initiation of a PIP by proving by

substantial evidence that the employee’s performance was unacceptable prior to

the PIP. The Federal Circuit’s decision in Santos applies to all pending cases,

including this one, regardless of when the events took place. Lee v. Department

of Veterans Affairs, 2022 MSPB 11, ¶ 16. Although the record in this case

already contains evidence suggesting that the appellant’s performance prior to the

initiation of the PIP was unacceptable, IAF, Tab 16 at 68, 70, Tab 43 at 4-10, we

remand the appeal to give the parties the opportunity to present argument and

additional evidence on whether the appellant’s performance during the period

leading up to the PIP was unacceptable in one or more critical elements, see Lee,

2022 MSPB 11, ¶¶ 15-17. On remand, the administrative judge shall accept

10

With her petition, the appellant has submitted 70 additional pages of documents.

PFR File, Tab 4 at 70-139. Some are not material, id. at 70-71, and others are not new,

id. at 88-97. The Board generally will not consider evidence submitted for the first

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

record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980). In addition, the Board generally will not grant a petition

for review based on new evidence absent a showing that it is of sufficient weight to

warrant an outcome different from that of the initial decision. Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980). Absent any such showing by the

appellant, we have not considered these documents. Other documents the appellant has

submitted on review are part of the record below and do not therefore constitute new

evidence, PFR File, Tab 4 at 73-80, 98-123, 125-39. Meier v. Department of the

Interior, 3 M.S.P.R. 247, 256 (1980).

15

argument and evidence on this issue, and shall hold a supplemental hearing if

appropriate. Id., ¶ 17.

¶25 The administrative judge shall then issue a new initial decision consistent

with Santos. See Lee, 2022 MSPB 11, ¶ 17. If the agency makes the additional

showing required under Santos on remand, the administrative judge may

incorporate in the remand initial decision his prior findings on the other elements

of the agency’s case, and the appellant’s affirmative defenses, as modified herein

to apply the proper standard. See id. However, regardless of whether the agency

meets its burden, if the argument or evidence on remand regarding the appellant’s

pre-PIP performance affects the administrative judge’s analysis of the appellant’s

affirmative defenses, the administrative judge should address such argument or

evidence in the remand initial decision. See Spithaler v. Office of Personnel

Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must

identify all material issues of fact and law, summarize the evidence, resolve

issues of credibility, and include the administrative judge’s conclusions of law

and his legal reasoning, as well as the authorities on which that reasoning rests).

ORDER

¶26 For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order .

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.