Janakkumar Patel v. Department of Commerce

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JANAKKUMAR T. PATEL, DOCKET NUMBER

Appellant, DC-0432-17-0032-I-1

v.

DEPARTMENT OF COMMERCE, DATE: February 1, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Janakkumar T. Patel, Nashville, Tennessee, pro se.

Taron Murakami, Alexandria, 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

affirmed the agency’s action removing him for unacceptable performance

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

petition for review. We AFFIRM the initial decision IN PART AS MODIFIED to

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

(1) supplement the administrative judge’s analysis to find that the agency

communicated its performance standards to the appellant, and (2) apply the

Board’s current standard for analyzing age and national origin discrimination

claims. We VACATE the initial decision IN PART and REMAND the appeal to

the regional office for further adjudication consistent with the U.S. Court of

Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics &

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

BACKGROUND

¶2 The appellant was employed at the agency as a Patent Examiner

(Examiner), GS-11. Initial Appeal File (IAF), Tab 4 at 45. This position requires

incumbents to examine assigned patent applications from first action to their final

disposition within an assigned period of time. IAF, Tab 15 at 13. The

performance plan for this position includes the following critical elements:

(1) quality; (2) production; and (3) docket management. 2 IAF, Tab 5 at 21.

¶3 Within the quality element, the plan distinguishes between category 1,

category 2, and category 3 errors, based on the activities involve d. IAF, Tab 15

at 49-51. As a GS-11 Examiner, to achieve a marginal rating in the quality

element, which is the minimum rating above unacceptable, the appellant was

required to have an error rate in category 1 and category 2 of 7.49% or less. 3 Id.

at 54-55. The activities under which category 2 errors may be charged include,

among other tasks, “[m]aking proper rejections under 35 U.S.C. §§ 102 and 103

with supporting rationale, or determining how claim(s) distinguish over the prior

[issued patents].” Id. at 50. The plan provides that if an examiner disagrees with

the determination that he has committed an error, he has the opportunity to rebut

2

The performance plan also includes stakeholder interaction, which is a noncritical

element. IAF, Tab 5 at 21.

3

Category 3 errors only apply to certain work of GS-14 and GS-15 Examiners and thus

were not applicable to the appellant. IAF, Tab 15 at 50-51.

it or, if the issue remains unresolved, make a pres entation regarding the issue to a

director. Id. at 49.

¶4 On October 6, 2014, the agency orally warned the appellant that his

performance was unacceptable in the Quality (Category 2) critical element. IAF,

Tab 5 at 69. Subsequently, the agency issued the a ppellant a letter confirming the

oral warning. Id. at 69-74. The agency informed him that, during the fourth

quarter of fiscal year 2014, 5 of the 39 applications that he submitted contained

category 2 errors, which was an unacceptable error rate of 12.82%. Id. at 69. It

stated that the seven bi-week period between October 1, 2014 and January 10,

2015, would serve as an evaluation period during which he must achieve the

marginal level of performance. Id. at 73-74. During the evaluation period, he

was required to achieve at least the marginal level of performance, meaning that

his error rate could not exceed 7.49% for category 2 errors. Id. at 74. The letter

further stated that this period would be extended one bi-week for every 80 hours

of approved absence. Id. As the appellant had taken 113 hours of leave, the

improvement period was extended to January 24, 2015. IAF, Tab 6 at 6.

¶5 On March 19, 2015, the agency warned the appellant in writing of his

unacceptable performance. Id. at 103-08. It stated that, during the oral warning

evaluation period, 7 of the 55 actions he submitted contained a category 2 error,

for an unacceptable error rate of 12.73%. Id. at 103. Thus, the agency placed the

appellant under a “written warning of unacceptable performance” beginning on

March 22, 2015, and ending on June 27, 2015, to be extended one bi -week for

every 80 hours of approved leave. Id. at 108. The period was extended until

July 11, 2015. IAF, Tab 7 at 6. Six of the 47 actions that the appellant prepared

during this period contained category 2 errors. IAF, Tab 14 at 60 -64. Thus, his

error rating during the period was 12.77%, which was greater than the maximum

allowable error rate of 7.49%. 4 IAF, Tab 5 at 5-13. The appellant chose not to

rebut any of the errors charged during the written warning period. IAF, Tab 14

at 68.

¶6 On October 23, 2015, the agency proposed the appellant’s removal for

unacceptable performance in the Quality critical element on the basis of his

12.77% category 2 error rate during the written warning period. IAF, Tab 5

at 5-13. The agency explained that all of these errors involved his responsibility

to “formulat[e] rejections under 35 U.S.C. §§ 102 and 103 with supporting

rationale, or [determine] how claim(s) distinguish over the prior [issued patents].”

Id. at 6-11. He responded orally and in writing. IAF, Tab 4 at 52 -109. The

agency imposed the removal, effective March 25, 2016. Id. at 47-50.

¶7 The appellant filed the instant appeal challenging his removal and requested

a hearing. 5 IAF, Tab 1. After conducting the appellant’s requested hearing, the

administrative judge issued an initial decision sustaining the removal . IAF,

Tab 28, Initial Decision (ID). Specifically, he sustained the agency’s charge and

found that the appellant did not prove his affirmative defense of discrimination on

the bases of race, national origin, or age. ID at 3-9.

¶8 The appellant has filed a petition for review and the agency has responded

in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

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

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

4

The agency originally included 8 errors out of 49 actions, which included 2 errors

from cases that the appellant had begun to process prior to the warning period, but it

later corrected the total actions to 47. IAF, Tab 14 at 60 -61, 69-70.

5

The agency issued a final decision on the appellant’s equal employment opportunity

complaint on September 15, 2016. IAF, Tab 1 at 12-24.

establish the following by substantial evidence: 6 (1) the Office of Personnel

Management (OPM) approved its performance appraisal system and any

significant changes thereto; (2) the agency communicated to the appellant the

performance standards and critical elements of his position; (3) the appellant’s

performance standards were valid under 5 U.S.C. § 4302(b)(1); 7 (4) the agency

warned the appellant of the inadequacies of his performance during the appraisal

period and gave him a reasonable opportunity to demonstrate acceptable

performance; and (5) the appellant’s performance remained unacceptable in one

or more of the critical elements for which he was provided an opportunity to

demonstrate acceptable performance. Lee v. Environmental Protection Agency,

115 M.S.P.R. 533, ¶ 5 (2010).

¶10 Here, the administrative judge found that OPM approved the agency’s

appraisal system, the performance standards at issue are valid under 5 U.S.C.

§ 4302(b)(1), the agency warned the appellant about his inadequate performance

and gave him a reasonable opportunity to demonstrate acceptable performance,

and his performance remained unacceptable in the Quality critical element.

ID at 3-9; IAF, Tab 5 at 26-39, Tab 15 at 115. The appellant does not challenge

the administrative judge’s findings regarding OPM’s approval and the validity of

the standards under 5 U.S.C. § 4302(b)(1), and we find no reason to disturb them.

PFR File, Tab 1. Further, although the administrative judge did not make a

finding that the appellant received notice of his performance standards, the record

reflects that the appellant acknowledged discussing his position and receiving his

performance standards in October 2013 and October 2014. IAF, Tab 5 at 16, 45.

6

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).

7

As a result of the enactment of the National Defense Authorization Act for Fiscal Year

2018, Pub. L. No. 115-91, § 1097(d)(1), 131 Stat. 1283, 1619 (2017), the criteria that

were set forth in 5 U.S.C. § 4302(b)(1) at the time the initial decision was issued now

appear in 5 U.S.C. § 4302(c)(1).

Accordingly, we modify the initial decision to find that the agency notified the

appellant of his performance standards.

¶11 Thus, the only remaining issues concerning the agency’s burden of proof

based on the Board’s case law at the time the initial decisi on was issued are

(1) whether the agency warned the appellant about his performance and gave him

a reasonable opportunity to improve and (2) whether his performance remained

unacceptable in at least one critical element. As discussed below, we find that the

agency met its burden regarding these issues.

The agency warned the appellant about his performance and gave him a

reasonable opportunity to improve.

¶12 The administrative judge found that the agency proved by substantial

evidence that it warned the appellant about his performance and provided him

with a reasonable opportunity to improve. ID at 4-6. He noted that the agency

provided the appellant with an oral and written warning and that, during the

written warning period, the appellant’s first-line supervisor met with him once

per week. Id. The appellant argues that the agency did not provide him a

sufficient and proper opportunity to improve and instead attempted to undermine

him by collecting information during weekly meetings and returning cases

multiple times. PFR File, Tab 1 at 4-5.

¶13 The employee’s right to a reasonable opportunity to improve is a

substantive right and a necessary prerequisite to all chapter 43 actions. Towne v.

Department of the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013). In determining

whether the agency has afforded the appellant a reasonable opportunity to

demonstrate acceptable performance, relevant factors include the nature of the

duties and responsibilities of the appellant’s position, the performance

deficiencies involved, and the amount of time which is sufficient to enable th e

employee to demonstrate acceptable performance. Id.

¶14 The appellant was expected to draft actions that were free from errors in

matters such as how a claim was distinguishable from prior issued patents. IAF,

Tab 15 at 50-51, 54-55. However, he exceeded this error rate. IAF, Tab 5

at 5-13. The agency’s expectation over this aspect was not unreasonable.

Further, the agency provided the appellant a sufficient time period to improve by

issuing an oral warning to him in October 2014 but not proposing his removal

until October 2015, after providing him with two improvement periods of over

seven bi-weeks. IAF, Tab 5 at 5-13, 69-74, Tab 6 at 6, 103-08, Tab 7 at 6; see

Lee, 115 M.S.P.R. 533, ¶ 33 (finding that a performance improvement period of

60 days was sufficient).

¶15 The appellant asserts that his first-line supervisor used the weekly meetings

to collect evidence to support his removal. PFR File, Tab 1 at 4. He also asserts

that his first-line supervisor returned cases to him multiple times in an untimely

manner and asked him to make changes without proper directions or guidance,

with the goal of hindering his production. Id. at 4-5. In finding that the agency

provided the appellant with the proper opportunity to improve, the administrative

judge credited the testimony of the appellant’s first -line supervisor that, during

the second improvement period, he met with the appellant at least once per week

to discuss errors and how to correct them. ID at 5-6; Hearing Transcript (HT) at

73 (testimony of the appellant’s first-line supervisor); IAF, Tab 14 at 73-189.

The administrative judge also credited the first-line supervisor’s testimony that he

returned the appellant’s work, sometimes on multiple occasions, because of

continued problems with the work product. ID at 8; HT at 73 -74 (testimony of

the appellant’s first-line supervisor). The appellant’s arguments do not provide a

reason to disturb the administrative judge’s finding, which is implicitly based

upon the demeanor of the appellant’s first-line supervisor during the hearing. 8

8

The appellant argues that his group director denied him a transfer request and did not

offer him a last-chance agreement prior to removing him. PFR File, Tab 1 at 5; IAF,

Tab 17 at 5-9. He has not stated any basis for his entitlement to a transfer or a last -

chance agreement and thus this argument does not provide a reason for disturbing the

initial decision. See Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative judge’s

See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir.

2016) (finding that the Board must defer to an administrative judge’s findings

when they are implicitly based upon the demeanor of witnesses who testified at

the hearing).

The appellant’s performance remained unacceptable in the Quality element.

¶16 The administrative judge found that the agency proved by substantial

evidence that the appellant’s performance remained unacceptable in the Quality

element. ID at 6-9. Specifically, he found that the appellant’s first-line

supervisor provided him with notice and explained each charged error as it

occurred as well as 14 days to submit a response to the error but that the appellant

did not respond. ID at 6-7; IAF, Tab 7 at 43-134, Tabs 8-13, Tab 14 at 1-70.

¶17 The appellant argues that, although there had been no issue with his

performance when he was a GS-7 and GS-9 Examiner, after he was promoted to a

GS-11 Examiner with the accompanying more complicated work, his first -line

supervisor did not provide proper guidance. PFR File, Tab 1 at 4 -5. The

appellant’s fist-line supervisor testified that he had expressed concerns about

promoting the appellant to the GS-11 level because of the quality of his work and

his inability to handle the more complicated duties of a GS-11 Examiner. HT

at 51 (testimony of the appellant’s first-line supervisor). Additionally, in contrast

to a GS-7 or GS-9 Examiner, the agency expects a GS-11 Examiner to work

independently and to submit many actions in final form. HT at 25-26 (testimony

of the appellant’s first-line supervisor), at 194-95 (testimony of the deciding

official); compare IAF, Tab 15 at 41-42, with id. at 43-44. Thus, the appellant’s

arguments that his performance at the lower grades had been acceptable or that

his first-line supervisor should have provided him more guidance are not

findings when he considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions).

persuasive because, as opposed to his prior position, the GS -11 position required

him to perform additional duties and to do so more independently than before.

¶18 The appellant also challenges the method by which his first -line supervisor

and the agency reviewed his work. PFR File, Tab 1 at 4 -5. For instance, he

states that the agency erred in its determination that four cases included clear

errors, that his first-line supervisor found clear errors without explaining how his

interpretation was incorrect or why the references he used in the cases were

unreasonable, and that his first-line supervisor returned some of his work to him

eight times. Id.; IAF, Tab 23 at 15-19, 46-47.

¶19 These arguments are not persuasive. The administrative judge credited the

testimony of the appellant’s first-line supervisor that he spent significant time

with the appellant explaining the errors in his cases and that any returned work

was due to persistent issues with the cases. ID at 8; HT at 73 -75 (testimony of

the appellant’s first-line supervisor). The appellant’s argument that his

performance was acceptable is belied by the fact that he did not challenge the

errors at the time. IAF, Tab 14 at 68. Additionally, the agency’s quality

assurance reviewer agreed with the appellant’s first -line supervisor that the cases

contained clear errors. Id. at 60.

¶20 Further, because the administrative judge’s finding that the appellant’s

performance remained unacceptable is implicitly based upon the credible

demeanor of his first-line supervisor at the hearing, the finding is entitled to

deference. See Purifoy, 838 F.3d at 1373. We find that the appellant’s

challenges do not provide a basis for disturbing that finding because they

constitute mere disagreement with the initial decision and are not supported by

the record. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)

(finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions on issues of credibility). Therefore, we agree with the

administrative judge that the appellant’s performance remained unacceptable in

the Quality element, despite the efforts of the agency.

The appellant did not prove age or national origin discrimination.

¶21 Finally, the appellant reasserts that the agency discriminated against him on

the bases of age and national origin. 9 PFR File, Tab 1 at 5; IAF, Tab 23 at 43-45.

Below, he asserted that he did not believe that other employees in his unit who

were younger and of a different national origin had to wait for over 2 weeks to

have their cases reviewed, had their work returned to them as often as he did, or

received notification of errors in bulk emails. IAF, Tab 23 at 44-45. The

administrative judge found that the appellant’s nonspecific allegations without

supporting evidence were insufficient to support his discrimination claims. ID

at 9. He also found that the appellant had failed to present any evidence to show

that “the agency’s action was motivated by discrimination.” Id. On review, the

appellant asserts that younger examiners of a different national origin were

“probably” not subject to the same high number of returns and vague guidance

addressing how to correct office actions. PFR File, Tab 1 at 5.

¶22 If a performance-based removal action under chapter 43 is supported by

substantial evidence, the Board will sustain the action unless the appellant shows

the following by a preponderance of the evidence: (1) the agency committed

harmful procedural error in reaching its decision; (2) the decision was based on a

prohibited personnel practice; or (3) the decision was not in accordance with

law. 10 5 U.S.C. §§ 2302(b), 7701(c); Lee, 115 M.S.P.R. 533, ¶ 6; 5 C.F.R.

§ 1201.56(b)(2)(i)(C). The Age Discrimination in Employment Act states that

“personnel actions . . . shall be made free from any discrimination based on age.”

9

The appellant does not discernably challenge the administrative judge’s conclusion

that he failed to prove his claim of discrimination on the basis of his race. ID at 9.

10

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

29 U.S.C. § 633a(a). Similarly, Title VII requires that such actions “shall be

made free from any discrimination based on race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-16(a). Thus, an appellant may prove a claim of

discrimination by showing that such discrimination “play[ed] any part” in the way

a decision was made. Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020); Pridgen

v. Office of Management & Budget, 2022 MSPB 31, ¶ 21. A finding that

prohibited discrimination played “any part” in the contested action is the same as

a finding of “motivating factor.” Pridgen, 2022 MSPB 31, ¶ 21. Although an

appellant who proves motivating factor and nothing more may be entitled to

injunctive or other forward-looking relief, to obtain the full measure of relief

available under the statute, including status quo ante relief, compensatory

damages, or other forms of relief related to the end result of an employment

decision, the appellant must show that discrimination was a but -for cause of the

employment outcome. Id., ¶ 22. One may prove discrimination under these

different standards of proof by various methods, including comparator evidence.

Id., ¶¶ 23-24.

¶23 We find that the appellant’s speculative allegations do not support a finding

that his age and/or national origin were motivating factors in his removal. ID

at 9; see Lee, 115 M.S.P.R. 533, ¶ 43 (finding the appellant failed to prove that

his removal for unacceptable performance constituted national origin

discrimination based on a remark of his second-level supervisor and his vague

testimony that five predecessors in his position, who were of a different national

origin, were not required to perform the same types of assignments he was

required to perform). Accordingly, we agree that the appellant has not proven his

discrimination claims. 11

11

The appellant asserts that the group director and the deciding official did not judge

his case independently. PFR File, Tab 1 at 5. To the extent that he is arguing that the

agency violated his right to due process because the deciding official did not properly

consider his case, we disagree. Fundamental due process requires that the tenured

public employee have “oral or written notice of the charges against him, an explanation

Remand is required in light of Santos.

¶24 Although the administrative judge correctly cited the Board’s precedent

setting forth the relevant legal standard for chapter 43 actions at the time he

issued his initial decision, subsequent to the initial decision, the Federal Circuit

held for the first time that, to support such an action, an agency “must justify

institution” of a performance evaluation period by showing that the employee’s

performance was unacceptable prior to the same. Santos, 990 F.3d at 1360-61.

Therefore, to defend an action under chapter 43, an agency must now also prove

by substantial evidence that the appellant’s performance during the appraisal

period prior to the performance evaluation period was unacceptable in one or

more critical elements. See Lee v. Department of Veterans Affairs, 2022 MSPB

11, ¶ 15. The Federal Circuit’s decision in Santos applies to all pending cases,

including this one, regardless of when the events took place. Id., ¶ 16. Although

the agency here introduced evidence showing that it orally warned the appellant

of inadequacies with his performance prior to the issuance of the written warning

of unacceptable performance that triggered the evaluation period, IAF, Tab 5

at 69-74, the parties nonetheless did not have an opportunity before the

administrative judge to address the modified legal standard set forth in Santos.

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

See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings

under the modified legal standard); see also Lee 2022 MSPB 11, ¶ 16 (remanding

of the employer’s evidence, and an opportunity to present his side of the story.”

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Here, the

agency proposed the appellant’s removal, provided him wit h detailed information

supporting the proposal, and allowed him the opportunity to respond before imposing

the removal. IAF, Tab 4 at 47-50, 52-109, Tab 5 at 5-13. The deciding official cited

the appellant’s oral and written responses specifically in the decision. IAF, Tab 4

at 47-48. Thus, we find that the agency provided him the proper process before

imposing his removal. See Lee v. Department of Labor, 110 M.S.P.R. 355, ¶ 9 (2008)

(finding that the agency provided the appellant with due process when it gave her notice

of the reasons underlying the charge of unacceptable performance under 5 U.S.C.

chapter 43 and an opportunity to respond to those reasons).

the appellant’s chapter 43 appeal because the parties were not informed of the

modified standard set forth in Santos).

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

whether the agency proved by substantial evidence that the appellant’s

performance prior to the evaluation period 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 his prior findings on other elements of the

agency’s case in the remand initial decision. However, regardless of whether the

agency meets its burden, if the argument or evidence on remand regarding the

appellant’s prior performance affects the administrative judge’s analysis o f the

appellant’s affirmative defenses, he should address such argument or evidence in

his 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 a nd his

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

ORDER

¶26 For the reasons discussed above, we grant the appellant’s petition for

review, affirm the initial decision in part as modified to (1) find that the agency

communicated its performance standards to the appellant, and (2) clarify the legal

standard applicable to the appellant’s discrimination-based affirmative defenses.

We vacate the initial decision in part and remand this case to the regional office

for further adjudication consistent with Santos.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.