Karl Brookins v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KARL BROOKINS, DOCKET NUMBER

Appellant, DE-0432-18-0359-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: January 19, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Karl Brookins, Honolulu, Hawaii, pro se.

Deborah E. Yim, Esquire, Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

REMAND ORDER

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

affirmed his removal under 5 U.S.C. chapter 43. For the reasons set forth below,

we GRANT the petition for review, VACATE the initial decision, and REMAND

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 Prior to the removal at issue in this appeal, the agency employed the

appellant as a GS-12 Fish Biologist in the Ocean and Coastal Resources Branch,

Water Resources Division (WRD) of the National Park Service (NPS). Initial

Appeal File (IAF), Tab 8 at 25, 27. As a Fish Biologist, the appellant was

responsible for providing “direct technical assistance to parks in the areas of

fisheries management, habitat restoration, and population recovery” and “liaison

with fisheries professionals in the academic community, as well as regulatory

compliance, training, and other professional assistance” in support of the

agency’s activities. IAF, Tab 10 at 77-80.

¶3 On May 2, 2017, the appellant’s supervisor placed him on a 90 -day

performance improvement plan (PIP) to give him an opportunity to improve his

performance to at least minimally successful for critical element 5. IAF, Tab 19

at 83-87. On July 31, 2017, she notified him that he had successfully completed

the PIP. IAF, Tab 9 at 96. Just over 5 months later, on January 11, 2018, 2 his

supervisor placed him on a second PIP to allow him an opportunity to improve his

performance to at least minimally successful in critical elements 1 and 2 by

completing specified tasks—namely, for critical element 1, one panel-reviewed

funding proposal and, for critical element 2, one approved interagency program

initiative—within 42 days. IAF, Tab 8 at 72, Tab 9 at 70-73.

¶4 On May 2, 2018, the appellant’s supervisor proposed his removal under

chapter 43 for “failure to achieve an acceptable level of performance after

2

The agency also denied the appellant’s within-grade increase (WIGI). The appellant

appealed both the denial of his WIGI and his placement on the PIP. Brookins v.

Department of the Interior, MSPB Docket Nos. DE-531D-18-0028-I-1, DE-3443-18-

0140-I-1. His petitions for review in those appeals were resolved in separate decisions.

3

unsuccessful completion of a [PIP].” IAF, Tab 8 at 71-75. She explained that he

did not timely complete either project required by the PIP and that his

performance was thus unsatisfactory in both critical elements 1 and 2. Id. After

the appellant responded, the deciding official issued a decision letter removing

him effective June 18, 2018. Id. at 27-31, 46-52. The appellant filed a Board

appeal in which he contested the merits of the removal and raised d ue process and

harmful procedural error affirmative defenses. IAF, Tabs 1, 7, 14, 21-22, 27, 38.

After holding the appellant’s requested hearing, the administrative judge issued

an initial decision affirming his removal. IAF, Tab 40, Initial Decision (ID).

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

the appellant has replied to the agency’s response. Petition for Review (PFR)

File, Tab 1, 3-4.

ANALYSIS

Although the administrative judge correctly found that the agency m et its burden

to prove most of the elements of its performance-based charge by substantial

evidence, we must remand the appeal for consideration of an additional element .

¶6 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) the Office of Personnel Management

(OPM) approved its performance appraisal system; (2) the agency communicated

to the appellant the performance standards and critical elements of his position;

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

(4) the agency warned the appellant of the inadequacies of his performance during

the appraisal period and gave him a reasonable opportunity to improve; and

(5) the appellant’s performance remained unacceptable in at least one critical

element. 3 White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5

3

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).

4

(2013). 4 In this case, the administrative judge found that the agency proved all of

these elements. ID at 6-20. On review, the appellant challenges the

administrative judge’s determinations that his performance standards were valid,

that the agency informed him of the deficiencies in his performance and afforded

him a reasonable opportunity to improve, and that hi s performance remained

unacceptable in at least one critical element. 5 PFR File, Tabs 1, 4.

The administrative judge correctly found the performance

standards valid.

¶7 Performance standards must, to the maximum extent feasible, permit the

accurate appraisal of performance based on objective criteria. 5 U.S.C.

§ 4302(c)(1); Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 29

(2010). Standards must be reasonable, realistic, attainable, and clearly stated in

writing. Lee, 115 M.S.P.R. 533, ¶ 29. Provided these requirements are met,

however, the Board will defer to managerial discretion in determining what

agency employees must do to perform acceptably in their positions. Id.

¶8 Here, the appellant’s Employee Performance Appraisal Plan (EPAP)

contained five critical elements, and the agency rated his performance on a

five-tiered rating system, in which the possible ratings were exceptional, superior,

fully successful, minimally successful, and unsatisfactory. 6 IAF, Tab 9 at 75-94.

For each critical element, the EPAP set forth three components that must be met

4

Although White provides that criterion 3 requires that performance standards must be

valid under 5 U.S.C. § 4302(b)(1), the National Defense Authorization Act of 2018

redesignated subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91,

§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).

5

The appellant has not challenged, and we discern no reason to disturb, the

administrative judge’s findings that the agency established that OPM approved the

agency’s performance appraisal system and that the agency communicated the

performance standards and critical elements of his position to him. ID at 5 -7; IAF,

Tab 7 at 4-5.

6

OPM approved this five-level performance appraisal system in 2005. IAF, Tab 10

at 82.

5

in order to achieve each rating level. Id. As relevant here, the EPAP specified

that, to achieve a rating of minimally successful in critical element 1, the

appellant must meet the following requirements: (1) develop at least one

approved peer-reviewed publication, presentation, or webinar; (2) independently

develop and submit at least one panel-reviewed funding proposal to provide

additional service to parks; and (3) develop at least one new working relation and

maintain existing working relationships to accomplish specified tasks. IAF,

Tab 9 at 77. To achieve a rating of minimally successful in critical element 2, he

must meet the following requirements: (1) participate in at least one

collaborative effort that results in tangible benefits to NPS; (2) initiate and

develop at least one collaborative effort that results in tangible benefits to NPS;

and (3) develop at least one approved interagency program initiative that supports

NPS goals. Id. at 80. For purposes of the annual performance appraisal, the

appellant had to meet all three components to achieve a rating of minimally

successful; if he failed to do so, he would receive a rating of unsatisfactory in that

critical element. Id. at 77, 80.

¶9 In the initial decision, the administrative judge found that critical

elements 1 and 2 were written, measurable, and attainable. ID at 7 -11. He

explained that, to the extent the standards required subjective interpretation, it

was unavoidable given the qualitative aspects of the appellant’s scientific field

and the agency’s mission. ID at 9, 11. In finding the standards attainable, he

credited the appellant’s supervisor’s testimony that two other scientists had been

able to satisfy the same standards, in addition to fulfilling their other duties,

without complaint. ID at 9. Accordingly, he concluded that the performance

standards were valid. 7 ID at 10-11.

7

In assessing whether the appellant’s performance standards were attainable, the

administrative judge considered but found lacking in credibility the appellant’s cla im

that the status reports he was required to submit to his supervisor during the PIP period

took him 8 hours per week. ID at 9-10. However, the effect of a PIP requirement on

the appellant’s ability to successfully complete the PIP appears to be more

6

¶10 On review, the appellant argues that, in considering whether the

performance standards were valid, the administrative judge erred in applying

5 U.S.C. § 4302(b)(1), rather than 5 U.S.C. § 4302(c). PFR File, Tab 1 at 16-19.

As noted above, the National Defense Authorization Act of 2018 redesignated

subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91, § 1097(d)(1)(A),

131 Stat. 1283, 1619 (2017). Accordingly, section 4302(c)(1) now sets forth the

statutory requirements for a valid performance standard, i.e., to the maximum

extent feasible, performance standards must permit the accurate evaluation of job

performance on the basis of objective criteria related to the job in question for

each employee. 5 U.S.C. § 4302(c)(1). Although the appellant is correct that the

administrative judge incorrectly cited to section 4302(b)(1), rather than

section 4302(c)(1), this citation error did not affect the outcome of the a ppeal

because he set forth and applied the correct law for assessing whether

performance standards are valid. ID at 7-10; see Panter v. Department of the Air

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

not prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

¶11 The appellant next argues that his performance standards were not valid

because, counting the critical elements and their components, the PIP involved

6 “legally-defined elements” and his performance standards contained a total of

17 “legally-defined elements,” which both exceed the limit of 5 critical elements

approved by OPM. PFR File, Tab 1 at 17-19. The Board has long held, however,

that a critical element may include subelements and that the incumbent of a

position for which a compound standard has been established may be required to

perform acceptably with respect to each of those subelements. Lee, 115 M.S.P.R.

appropriately considered as a challenge to the adequacy of the appellant’s opportunity

to improve. See White, 120 M.S.P.R. 405, ¶ 5. Accordingly, we address the

administrative judge’s findings on this point and the appellant’s challenges to them

below in our discussion of whether the agency met its burden to show that it gave the

appellant a reasonable opportunity to improve.

7

533, ¶ 31; Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 627-28

(1984). Here, the subelements/components set forth under critical elements 1 and

2 contribute to the clarity of the appellant’s performance standards by describing

the quality, quantity, timeliness, and manner of performance required to be

appraised at a particular level of performance and are consistent with his job

description. See Lee, 115 M.S.P.R. 533, ¶ 31; Shuman, 23 M.S.P.R. at 627-28;

5 C.F.R. § 430.203 (defining “performance standard”). Thus, the fact that each

broadly labeled critical element contained component parts does not render the

performance standards invalid.

¶12 The appellant also argues that his performance standards did not conform to

the “agency-wide performance levels” in the agency’s Departmental Manual

(DM), which define in general terms each rating level, 8 and instead required him

to complete specific tasks. 9 PFR File, Tab 1 at 19-20; IAF, Tab 24 at 12-13. The

Board’s inquiry into the validity of performance standards, however, is limited to

whether they permit the accurate evaluation of job performance on the basis of

objective criteria and are reasonable, realistic, attainable, and clearly stated in

writing. Lee, 115 M.S.P.R. 533, ¶ 29. Provided these requirements are met, an

agency is free to set its performance standards as high as it thinks appropriate and

to utilize “absolute” performance standards—i.e., under which a single incident

of poor performance will result in an unsatisfactory rating on a critical element.

See Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, ¶¶ 9-15 (2004).

Here, we find that the appellant’s performance standards were valid because they

8

For example, the DM defines “fully successful” as “a good, sound performance that

meets organizational goals while effectively applying technical skills and

organizational knowledge to get the job done.” IAF, Tab 24 at 12-13.

9

The appellant appears to raise this argument for the first time on review. Nonetheless,

we have considered it because it appears to pertain to the validity of his performance

standards. See Neal v. Defense Logistics Agency, 72 M.S.P.R. 158, 161 (1996) (stating

that the agency must prove its action was based on valid performance standards, and the

Board is obliged to consider this issue, regardless of whether it has b een raised by the

parties).

8

meet the statutory requirements and discern no merit to his contention that they

are invalid because they require him to perform certain tasks rather than rating

him in accordance with the general definitions in the DM.

¶13 The appellant additionally argues that the panel -reviewed funding proposal

component of critical element 1 violates section 4303(b)(1)(A) because it is not

about the “performance by the employee” performing the “critical elements of the

employee’s position.” 10 PFR File, Tab 1 at 13, 21-22. As stated above, however,

so long as performance standards are objective and meet the other statutory

requirements, the Board will defer to the agency’s managerial discretion to

determine what the appellant must do to perform acceptably in his position. See

Lee, 115 M.S.P.R. 533, ¶ 29. The requirement that the appellant submit a funding

proposal for panel review is related to the appellant’s duties and responsibilities

and permits the accurate evaluation of his job performance on the basis of

sufficiently objective criteria. IAF, Tab 10 at 76-81. Although the outcome of a

panel review and the time required by the panel may be out of the appellant’s

control, he has not alleged or shown that the agency imposed the panel review

requirement in an unreasonable manner. See Guillebeau v. Department of the

Navy, 362 F.3d 1329, 1334, 1337 (Fed. Cir. 2004) (finding that a requirement that

“[a]ll web pages be peer reviewed prior to final submission” was not invalid

because the agency applied the requirement in a reasonable manner).

Accordingly, we discern no basis to conclude that the panel-reviewed funding

proposal component of critical element 1 was invalid .

¶14 Lastly, the appellant argues that, in finding the performance standards

attainable, the administrative judge erred by comparing his work, as the “only

marine fish biologist,” to the “non-fish biologists.” PFR File, Tab 1 at 9. This

10

Section 4303(b)(1)(A) provides that, when an agency proposes to demote or remove

an employee for unacceptable performance under chapter 43, he is entitled to 30 days’

advance written notice of the proposed action, which identifies the “specific instances

of unacceptable performance by the employee” and “the critical elements of the

employee’s position involved in each instance of unacceptable performance.”

9

cursory argument, however, does not establish error in the administrative judge’s

determination that his performance standards were attainable. Moreover, we

discern no basis to disturb the administrative judge’s decision to credit the

appellant’s supervisor’s testimony that other scientists were able satisfy the same

standards as the appellant, in addition to fulfilling their other duties, without

complaint. 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

demeanor-based credibility determinations “[e]ven if demeanor is not explicitly

discussed”).

¶15 In light of the foregoing, we agree with the administrative judge that the

appellant’s performance standards were valid.

The administrative judge correctly found that the agency warned the

appellant of his performance deficiencies and afforded him an

opportunity to improve.

¶16 The agency next must prove by substantial evidence that it warned the

appellant of the inadequacies of his performance during the appraisal period and

gave him an adequate opportunity to improve. Towne v. Department of the Air

Force, 120 M.S.P.R. 239, ¶¶ 6, 8 (2013). OPM’s regulations governing

performance-based actions under chapter 43 require that, “[a]s part of the

employee’s opportunity to demonstrate acceptable performance, the agency shall

offer assistance to the employee in improving unacceptable performance.”

5 C.F.R. § 432.104. The employee’s right to a reasonable opportunity to improve

is a substantive right and a necessary prerequisite to all chapter 43 actions. Lee,

115 M.S.P.R. 533, ¶ 32. 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 enable the employee with an opportunity to

demonstrate acceptable performance. Id.

10

¶17 Here, the appellant’s supervisor advised him in the January 11, 2018 PIP

memorandum that, as discussed at his October 2017 year-end performance

review, his performance in critical elements 1 and 2 was unsatisfactory and that

he would be placed on a PIP to allow him an opportunity to improve his

performance in each element to at least minimally successful. IAF, Tab 9

at 70-73. She stated that, to be considered minimally successful by the end of the

PIP period, the appellant must do the following: (1) for critical element 1,

independently develop and submit “one panel reviewed proposal for funding from

outside of WRD” for a viable project that provided additional services to parks;

and (2) for critical element 2, develop and obtain his supervisor’s approva l for an

“interagency program initiative” supporting the goals of the NPS. Id. at 72. She

further instructed him to submit weekly status reports regarding his progress,

invited him to stop by her office if he had any questions, and warned him that

failure to improve his performance to minimally successful in critical elements 1

and 2 by the end of the PIP period would be grounds for his removal or demotion.

Id. at 72-73. Although the PIP memorandum stated that the PIP would end on

February 22, 2018, the appellant requested and received a 1-day extension due to

the 1-day Government shutdown, and the PIP ended on February 23, 2018. Id.

at 70; IAF, Tab 8 at 72.

¶18 In the initial decision, the administrative judge found that substantial

evidence established that the agency warned the appellant of his performance

inadequacies in the January 11, 2018 PIP notice, as well as in his October 31,

2017 performance appraisal. ID at 11-12. Regarding the opportunity to improve,

he found that the appellant received 42 days to demonstrate improvement, that

this was a reasonable amount of time given the nature of the PIP, and that he

should have been able, within 42 days, to develop and submit “at least one panel

reviewed proposal” and to develop “at least one approved in teragency program

11

initiative.” 11 ID at 12-14. He found that the appellant’s supervisor provided him

adequate assistance by requiring him to submit weekly status reports regarding

what he was doing to demonstrate improvement, sending him substantive

guidance as to what he needed to do to improve his performance, and offering to

speak to him about his progress. ID at 14-15. He considered but found incredible

the appellant’s claim that he was not informed that he was expected to obtain

panel review of his funding proposal during the PIP period. ID at 17-18. In

addition, he found incredible the appellant’s claim that the status reports took

8 hours per week because he never rebutted his supervisor’s testimony that she

told him not to spend more than 30 minutes per week on them and because it

appeared that he lacked time management skills when it came to this type of task.

ID at 9-10. He thus concluded that the agency proved by substantial evidence

11

In finding that 42 days was a sufficient amount of time for the a ppellant to complete

the 2 requirements of the PIP, the administrative judge considered the fact that the

appellant had been on notice of the deficiencies in his p erformance in critical

elements 1 and 2 since his March 31, 2017 midyear performance review. ID at 13. As

the administrative judge noted, the Board has previously considered prior warnings of

unacceptable conduct in assessing the reasonableness of the opportunity to improve.

Id.; see Mattes v. Department of the Army, 24 M.S.P.R. 477, 480 (1984) (noting in a

chapter 43 appeal that, when the appellant received a prior warning of unacceptable

performance and a reminder that timely submissions were critical, a 30-day

improvement period “would have been sufficient” if the appellant had been given a

reasonable opportunity to demonstrate improvement); see also Ray v. Department of the

Navy, 34 M.S.P.R. 289, 292 (1987) (finding in a chapter 75 appeal that 45 days for an

improvement period was sufficient when the appellant had al so been issued letters of

caution and reprimand). Here, however, it is unclear how prior notice of the appellant’s

performance deficiencies in critical elements 1 and 2, which he received nearly a year

before the beginning of the PIP at issue, relates to the reasonableness of his opportunity

to improve during the PIP period. IAF, Tab 10 at 7-8. In any event, because we agree,

on the basis of other factors, with the administrative judge that the appellant received a

reasonable opportunity to improve, any error in this regard did not affect the outcome

of the appeal. See Panter, 22 M.S.P.R. at 282. Because we do not consider the midyear

performance review in our assessment of the opportunity to improve, we need not

address the appellant’s argument on review that the administrative judge erred in

finding that the midyear performance review placed him on notice that he was “skating

on thin ice” in critical element 2. PFR File, Tab 1 at 23-24.

12

that the appellant received an adequate opportunity to improve his performance.

ID at 15.

¶19 On review, the appellant reiterates his claim that the weekly status reports

took him 8 hours per week and argues that the administrative judge erred in

finding that his supervisor told him not to spend more than half an h our per week

on them. PFR File, Tab 1 at 5-8; ID at 9-10. Although we agree with the

appellant that his supervisor did not testify that she explicitly told him not to

spend more than 30 minutes per week on the report, she did testify that she told

him he was spending too much time on the weekly status reports and that she

estimated they should only take about 30 minutes per week. IAF, Tab 35,

Hearing Transcript (HT) at 209-10 (testimony of the appellant’s supervisor).

Nonetheless, we discern no basis to disturb the administrative judge’s

determination that the appellant’s claim that the status reports required 8 hours

per week is not credible. The appellant has not rebutted his supervisor’s

testimony that she told him he was spending too much time on the status reports

or her testimony that she did not require that the status reports be in any

particular format. Id. In addition, the evidence of record, including the status

report instructions in the PIP memorandum and the content of the reports

themselves, which include a significant amount of recycled material from prior

weeks, establish that they should not have taken the appellant a significant

amount of time each week to complete. ID at 9-10; IAF, Tab 9 at 5-68, Tab 10

at 72. We further agree with the administrative judge that, if t he appellant spent

8 hours per week on the status reports, it represents a failure on his part to

properly manage his time, rather than an overly burdensome requirement that

deprived him of a reasonable opportunity to demonstrate improvement. ID at 10.

¶20 The appellant also argues that the administrative judge erred in finding

incredible his claim that he was unaware of the requirement that he obtain panel

review during the PIP period on the ground that he did not raise this concern in

his response to the proposed removal. PFR File, Tab 1 at 12-13; ID at 17. He

13

argues that it is “irrelevant to the issue’s fundamental credibility” when he elects

to introduce an issue and that there is no statutory basis for requiring that all

issues that could be raised during an appeal be included in the response to the

proposed action. PFR File, Tab 1 at 13-14. Although there is no requirement that

the appellant raise every argument he intends to raise before the Board in his

response to the proposed action, the consisten cy of prior statements is a relevant

consideration in assessing his credibility. Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987). Accordingly, the Board has found an appellant’s

allegations less credible when he raised them for the first time on appeal. See,

e.g., Reynolds v. Department of Justice, 63 M.S.P.R. 189, 195 (1994); Abatecola

v. Veterans Administration, 29 M.S.P.R. 601, 607 n.3, aff’d, 802 F.2d 471 (Fed.

Cir. 1986) (Table). In addition, the Board routinely considers an appellant’s

response to the proposed action in assessing claims regarding deficient notice or

confusion with the charges, e.g., Shibuya v. Department of Agriculture,

119 M.S.P.R. 537, ¶ 11 (2013); Mouser v. Department of Health & Human

Services, 30 M.S.P.R. 619, 624 (1986). We therefore find no basis to disturb the

administrative judge’s determination that the appellant’s claim la cked credibility.

Furthermore, the PIP memorandum specifically stated that, to be considered

minimally successful in critical element 1, the appellant must submit “one panel

reviewed proposal for funding,” i.e., a funding proposal that had been reviewed

by the panel. IAF, Tab 9 at 72. Thus, the appellant knew or should have known

that he was required to obtain panel review of his funding proposal by the end of

PIP period.

¶21 The appellant additionally appears to argue on review that he did not have a

reasonable opportunity to demonstrate improvement because the panel review was

out of his control. PFR File, Tab 1 at 21-22. While we agree that the panel’s

review of the appellant’s funding proposal was not within his exclusive control,

there is no reason here to find that the panel review requirement deprived him of

a reasonable opportunity to improve given that he did not even submit his

14

proposal to the panel within the PIP period. Cf. Sandland v. General Services

Administration, 23 M.S.P.R. 583, 591 (1984) (finding that the appellant did not

receive a reasonable opportunity to improve when, as a result of his supervisor’s

actions during the improvement period, he was unable to perform the work

required to demonstrate improvement); Mattes v. Department of the Army,

24 M.S.P.R. 477, 480 (1984) (finding that the appellant did not receive an

adequate opportunity to improve when the late submi ssion of three reports was

caused by circumstances outside of his control).

¶22 The appellant also argues that the administrative judge failed to consider his

total “compounded” workload during the PIP, which included “one plan, one

proposal, a weekly reporting requirement, and maintaining performance on the

seventeen 2018 performance appraisal components, i.e., a full -time workload plus

the proposal, plan, and reports.” PFR File, Tab 1 at 5-9. We find no merit to the

appellant’s argument that the administrative judge failed to consider his total

workload in finding that he received an adequate opportunity to improve. See

Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132

(1984) (recognizing that an administrative judge’s failure to mention all of the

evidence of record does not mean that she did not consider it in reaching her

decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). The administrative

judge carefully considered the requirements of the PIP and concluded that the

appellant should have been able to complete them within the 42 -day period. The

appellant has not specifically identified what other work he beli eves deprived him

of a reasonable opportunity to demonstrate improvement in critical elements 1

and 2 during the improvement period, and there is no evidence reflecting that he

raised concerns of this nature with his supervisor at any time during the PIP.

Accordingly, notwithstanding the weekly status reports and the appellant’s other

work requirements, we find no basis to disturb the administrative judge’s

determination that 42 days was a sufficient amount of time to complete the

limited tasks required by the PIP, especially in light of the fact that his supervisor

15

clearly advised him of the importance of focusing on those tasks during the PIP

period. IAF, Tab 8 at 92, Tab 9 at 72-73.

¶23 The appellant next argues that the PIP requirements became more extensi ve

over the course of his PIP. PFR File, Tab 1 at 23-24. As set forth above, the

January 11, 2018 PIP memorandum specifically advised the appellant of his

performance deficiencies and of what he must do to be rated minimally successful

in critical elements 1 and 2 by the end of the PIP—namely, that he must complete

one panel-reviewed funding proposal and one approved interagency program

initiative. IAF, Tab 9 at 72. In addition, both the PIP memorandum and 2017

performance appraisal advised the appellant that he must meet all three

components of each critical element and that failure to meet any one of the

components would result in a failure to meet the minimally successful standard.

IAF, Tab 9 at 71, Tab 30 at 8, 11. Ultimately, the appellant’s supervisor found

that the appellant failed to timely complete the tasks specified in the PIP notice

and, for that reason, proposed his removal for failure to achieve an acceptable

level of performance in either critical element 1 or 2. IAF, Tab 8 at 71-75.

Accordingly, we find no merit to the appellant’s claim that the requirements for

him to successfully complete the PIP changed over time.

¶24 In sum, we discern no basis to disturb the administrative judge’s

determination that the appellant received a reaso nable opportunity to improve.

The Board has found that a 30-day PIP may be sufficient to satisfy an agency’s

obligation to provide an employee with a reasonable opportunity to demonstrate

acceptable performance. See, e.g., Melnick v. Department of Housing & Urban

Development, 42 M.S.P.R. 93, 101 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)

(Table); Wood v. Department of the Navy, 27 M.S.P.R. 659, 662-63 (1985). Here,

the appellant received 42 days to demonstrate improvement by completing

one component of critical element 1 (submit one panel-reviewed funding

proposal) and one component of critical element 2 (one approved interagency

program initiative), and there is no evidence in the record that this length of time

16

unfairly prevented him from demonstrating acceptable performance. See Papritz

v. Department of Justice, 31 M.S.P.R. 495, 499 (1986) (finding that the appellant

received a reasonable opportunity to improve when there was no evidence the

length of the PIP unfairly prevented him from demonstrating acceptable

performance). To the contrary, the record reflects that he received adequate time

and substantial assistance to complete these limited tasks and that, despite being

informed of the minimum requirements to pass the PIP and encouraged to discuss

his progress with his supervisor, he never requested an extension or expressed

any need for additional time. See id.

¶25 In light of the foregoing, we agree with the administrative judge that the

agency met its burden to show by substantial evidence that it warned the

appellant of his performance deficiencies and afforded him an adequate

opportunity to improve.

The administrative judge correctly found that the appellant’s

performance remained inadequate in at least one critical element .

¶26 Lastly, the agency must show by substantial evidence that, after an adequate

improvement opportunity period, the appellant’s performance remained

unacceptable in at least one critical element. Towne, 120 M.S.P.R. 239, ¶ 6. A

detailed proposal notice can be considered part of an agency’s valid proof of i ts

allegations in a chapter 43 case; however, the proposal notice alone is insufficient

to meet the agency’s burden of proof and instead must be accompanied by

corroborating evidence. Thompson v. Department of the Army, 122 M.S.P.R. 372,

¶ 12 (2015). When an employee is removed on the basis of fewer than all the

components of a performance standard for a critical performance e lement, the

agency must present substantial evidence that the employee’s performance

warranted an unacceptable rating on the performance element as a whole.

Leonard v. Department of Defense, 82 M.S.P.R. 597, 599 (1999).

17

Critical Element 1

¶27 As noted above, the PIP memorandum stated that, to obtain a rating of

minimally successful in critical element 1, the appellant was required to develop

and submit “one panel reviewed proposal” for funding for a viable project that

provided additional services to parks. IAF, Tab 9 at 72. To fulfill this

requirement, the appellant sent the Division Chief a funding proposal for a Nature

Fund “Fishscaping” project to “develop scientific capacity in fish echosounding”

at 8:00 p.m. on February 22, 2018. IAF, Tab 8 at 81-85. In the proposed removal

notice, the appellant’s supervisor stated that, because he emailed his proposal to

the Division Chief at 8:00 p.m. on the night before his PIP deadline, there was no

time to obtain approval from the three supervisors who needed to review the

proposal before submitting it for panel review. IAF, Tab 7 at 72. In addition, she

noted that the appellant’s late submission presumed that the panel “would

actually be able to review [his] document with such little notice.” Id. Thus, she

concluded that the appellant’s performance in critical element 1 was

unsatisfactory. Id. The administrative judge found that the agency proved that

the appellant’s performance remained unacceptable in critical element 1 because

he failed to fulfill his obligation to develop and submit at least one

panel-reviewed proposal within the PIP period. ID at 16-18.

¶28 On review, the appellant argues that the administrative judge erred in

finding that he did not improve his performance in critical element 1, ostensibly

because he should not have been required to obtain the supervisory signatures and

panel review during the PIP period. PFR File, Tab 1 at 12-14. As discussed

above, however, we find unavailing the appellant’s assertion that he was not

aware of the requirement that he obtain panel review during the improvement

period, as well as his alternative argument that he should not have been required

to do so. While we acknowledge that the time required for a panel review is to

some extent out of the appellant’s hands, he did not even submit the completed

proposal to the panel for its review within the PIP period. Rather, he waited unt il

18

8:00 p.m. on the night before the end of his PIP to request the first of the three

supervisory signatures required before he could submit his funding proposal to

Nature Fund for panel review. 12 IAF, Tab 8 at 81, Tab 9 at 72. Accordingly, we

agree with the administrative judge that the agency established by substantial

evidence that the appellant failed to demonstrate acceptable performance in

critical element 1.

Critical Element 2

¶29 To be considered minimally successful in critical element 2, the PIP

memorandum stated that the appellant must, by the end of the PIP period, have

developed and obtained his supervisor’s approval for an interagency program

initiative with goals, objectives, activities, and expected outcomes that he would

be able to start working on upon final approval. IAF, Tab 9 at 72. The appellant

submitted two proposals to his supervisor in an attempt to fulfill this requirement.

IAF, Tab 8 at 47, 73. First, on January 26, 2018, he proposed a “Fundamental

Fishing Information pilot project and Program Initiative”; however, his supervisor

informed him on January 26 and 29, and February 7, 2018, that his proposal was

not interagency and would not satisfy the requirements of his PIP. Id. at 92-99.

Second, on the evening before the end of his PIP, he emailed his supervisor

requesting approval of an “ecosystem character and fishing impacts interagency

program initiative.” Id. at 77-79. Although it was the last day of the appellant’s

PIP, his supervisor responded the next day explaining that this idea was not

interagency and suggesting they “discuss another option and timeframe for

addressing this component of [his] assignment.” Id. at 77. The appellant did not

respond, testifying at the hearing that he did not open his email until after

February 23, 2018, because he was busy working on his last status report. HT

at 148 (testimony of the appellant). In the proposed removal notice, the

12

As the appellant acknowledged in his email to the Division Ch ief, a Nature Fund

requires that funding proposals have three supervisory signatures before being

submitted to the panel. IAF, Tab 8 at 81.

19

appellant’s supervisor reiterated that neither of the appellant’s proposals involved

“interagency” participation and thus found his performance in critical element 2

to be unsatisfactory. IAF, Tab 8 at 73-74.

¶30 In the initial decision, the administrative judge found that substantial

evidence supported the appellant’s supervisor’s determination that the appellant’s

two ideas were not interagency and that he failed to fulfill the requirements of

critical element 2. ID at 18-20. In so finding, he observed that the appellant was

negligent under the circumstances by failing to check his email on February 23,

2018. ID at 19.

¶31 On review, the appellant argues that administrative judge failed to consider

his argument that the PIP notice did not inform him that he was required to obtain

agreement from a partner agency to work on his plan and that his supervisor

informed him of this requirement only after he submitted his February 22, 2018

idea. PFR File, Tab 1 at 15; IAF, Tab 38 at 17. Although the administrative

judge did not address this argument, such error is harmless as the argument is

clearly without merit. See Panter, 22 M.S.P.R. at 282. The PIP notice explicitly

advised the appellant that he must obtain his supervisor’s approval for an

“interagency program initiative,” i.e., a program initiative that involves another

agency. IAF, Tab 9 at 72. Contrary to the appellant’s characterization of his

supervisor’s rationale for finding he did not satisfy this requirement, she did not

require him to have approval from a partner agency prior to the end of the PIP

period; rather, she required that his program initiative idea involve collaboration

with another agency. IAF, Tab 8 at 73. Although she stated in the proposed

removal notice that the appellant’s second proposal identified “no one else who

had agreed to participate in the initiative,” this observation was simply one of a

number of things his proposal failed to do, in addition to not identifying another

agency for collaboration, partner tasks, or roles or functions for another agency.

Id. Finally, she noted that, “[a]ll of the listed tasks and outcomes were tasks that

you would work on, and thus there was no ‘interagency’ participation.” Id.

20

Accordingly, we find no merit to the appellant’s contention that the PIP notice

did not place him on notice of the requirement that his program initiative proposal

involve participation by another agency and agree with the administrative judge

that substantial evidence supports the agency’s finding that the appellant’s

submissions did not satisfy this criterion.

¶32 The appellant also challenges on review the administrative judge’s

determination that he was negligent under the circumstances, arguing that he had

to turn in his final status report on February 23, 2018, and that he believed the

deadline for the program initiative was February 22, 2018. PFR File, Tab 1

at 10-11. In other words, he appears to argue that it was reasonable to spend his

workday on February 23, 2018, on his final status report without checking his

email because it was too late to make any further submissions towards successful

completion of his PIP. Even if the appellant believed that February 22, rather

than February 23, 2018, was the last day of his PIP period, we agree that he acted

in a negligent manner in failing to check his emails on a workday, which resulted

in him not seeing his supervisor’s email informing him that his initiative was not

interagency and offering to “discuss another option and timeframe.” Nonetheless,

the finding of negligence is not material to the outcome here because, as

discussed above, the appellant failed to obtain his supervisor’s approval for an

interagency program initiative before the end of the PIP period, despite her

numerous emails, expressed concerns, and offers to provide additional assi stance

and to work together to come up with an interagency program initiative idea.

IAF, Tab 8 at 92-99. Thus, even if the administrative judge erred in finding that

the appellant acted in a negligent manner, such error provides no basis to disturb

the initial decision. See Panter, 22 M.S.P.R. at 282.

A rating of unsatisfactory in one component of a critical

element is sufficient for an overall unsatisfactory rating.

¶33 The appellant further argues that the administrative judge erred in finding

that his performance was unacceptable in critical elements 1 and 2 because he

21

successfully completed two of the three components of each critical element.

PFR File, Tab 1 at 21-22; IAF, Tab 38 at 6-7. However, as the administrative

judge correctly observed, the performance standards made clear that the appellant

must meet “all three components” of the critical element and that a “[f]ailure to

meet any one of the components will result in an overall failure to meet the

minimally successful standard.” ID at 16, 18; IAF, Tab 9 at 71, Tab 30 at 8, 11.

Accordingly, we discern no basis to disturb the administrative judge’s

determination that the agency provided substantial evidence tha t the appellant

failed to develop and submit one panel-reviewed funding proposal and one

approved interagency program initiative and that he therefore failed to meet the

minimally successfully standard for critical elements 1 and 2 as a whole, even if

he satisfactorily completed the other components of the critical elements. See

Leonard, 82 M.S.P.R. 597, ¶ 6.

We must remand this appeal in light of Santos.

¶34 Although the appellant has identified no basis for us to disturb the

administrative judge’s findings regarding the agency proving the elements

described above, we must remand this appeal for the agency to prove an

additional element of its charge. During the pendency of the petition for review

in this case, the United States Court of Appeals for the Federal Circuit held in

Santos, 990 F.3d at 1360-61, 1363, that in addition to the five elements of the

agency’s case set forth above, the agency must also “justify the institution of a

PIP” by proving by “substantial evidence that the employee’s performance was

unacceptable . . . before 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.

Accordingly, 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 id., ¶¶ 15-17. On remand, the administrative judge shall accept

22

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

appropriate. Id., ¶ 17.

On remand, the administrative judge should analyze the appellant’s affirmative

defense that the agency violated the collective bargaining agreement (CBA) under

the harmful error standard.

¶35 In the initial decision, the administrative judge found that the agency did

not violate the appellant’s due process rights by giving him 15 days to respond to

the notice of proposed removal and prohibiting him from entering his duty station

and contacting his coworkers during the response period because he received a

meaningful opportunity to respond to the proposed removal. ID at 20-21. He

also found that, even if the agency violated the CBA by giving the appellant only

42 days to demonstrate improvement and 15 days to respond to the notice of

proposed removal, he failed to show that such violation was harmful. ID

at 13-14, 21-22. Accordingly, he concluded that the appellant failed to establish

any affirmative defense.

¶36 On review, the appellant does not challenge, and we discern no basis to

disturb, the administrative judge’s determination that he did not prove an y due

process violation or that the 15-day response period constituted a harmful

procedural error. However, he reiterates his argument that he should have

received a 90-day improvement period pursuant to the CBA. PFR File, Tab 1

at 23.

¶37 In finding the appellant failed to prove this claim, the administrative judge

relied on his determination that the agency met its burden to prove the charge

including, as relevant here, that the length of the PIP was reasonable. ID

at 13-14. We find his reliance on the agency’s proof of its charge to be in error

because the requirement for the agency to prove that it afforded an appellant with

a reasonable opportunity to improve differs from the appellant’s burden to prove

harmful error. See Lee, 115 M.S.P.R. 533, ¶ 32 (discussing the relevant factors in

determining if the agency afforded an appellant a reasonable opportunity to

23

improve). The harmful error standard applies to allegations of agency error in

applying collective bargaining agreements in performance actions brought under

chapter 43. DeSousa v. Agency for International Development, 38 M.S.P.R. 522,

526 (1988). When an appellant alleges that the agency committed a procedural

error, he bears the burden of proving by preponderant evidence that the agency’s

procedural error caused substantial harm to his rights, i.e., that the agency would

likely have reached different conclusion in the absence of the error. 13 Wood,

27 M.S.P.R. at 663; 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C). A mere showing

that there was a possibility of prejudice is insufficient. Wood, 27 M.S.P.R.

at 663.

¶38 Here, the appellant argued that the agency violated the CBA by not

affording him at least 90 days to demonstrate improvement and th at “[a]nother

few days beyond the 42-day PIP would have made a significant difference in the

outcome.” IAF, Tab 38 at 7-8. Specifically, he alleged that, if he had been given

a longer PIP period, he would have been able to obtain the three signatures

required to approve his proposal and could have addressed his supervisor’s

concerns with the interagency program initiative program idea that he sent to

her on February 22, 2018. Id. at 8. He also claimed that, if he had been given a

90- or 180-day PIP period, he “would have considered continuing to seek

approval for the Fundamental Fishing Information pilot project and Program

Initiative by further addressing his supervisor’s many questions.” Id. He alleges

that he did not do so during his 42-day PIP because, given his supervisor’s

questions and comments, he decided to spend the last 15 days of his PIP

“pursuing a different independent approach.” Id. at 8-9.

¶39 The agency disagrees with the appellant’s contentions. It argues, in

essence, that the appellant failed to show that if he was on the PIP for a longer

13

A preponderance of the evidence is that 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).

24

period, he likely would have met the PIP requirements. PFR File, Tab 3 at 10-11.

It points to testimony and documentary evidence reflecting that the appellant was

on notice that his performance in critical elements 1 and 2 required improvement

as early as March 2017. PFR File, Tab 3 at 10-11. Thus, this issue is in dispute

and resolution may require credibility determinations. Such determinations

should be made in the first instance by the admini strative judge who conducted

the hearing. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 18

(2016). Therefore, on remand, the administrative judge should make findings

regarding the appellant’s claim that the agency violated the CBA , applying the

harmful error standard. See Wood, 27 M.S.P.R. at 663.

¶40 In conclusion, we must remand this decision in light of Santos and for a

new determination regarding the appellant’s claim that the agency violated the

CBA. On remand, the administrative judge shall accept argument and evidence

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

performance was unacceptable, and shall hold a supplemental hearing on this

issue if appropriate. Lee, 2022 MSPB 11, ¶ 17. The administrative judge shall

then issue a new initial decision consistent with Santos and the guidance above.

See id. If the agency makes the additional showing required under Santos on

remand, the administrative judge may incorporate h is prior findings on the other

elements of the agency’s case and the appellant’s other affirmative defenses in

the remand initial decision. 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, he 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).

25

ORDER

¶41 For the reasons discussed above, we REMAND this case to the field 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.