Ricardo Howell v. Department of Housing and Urban Development

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICARDO P. HOWELL, DOCKET NUMBER

Appellant, DC-0432-13-6622-I-2

v.

DEPARTMENT OF HOUSING AND DATE: January 18, 2023

URBAN DEVELOPMENT,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Juliette Niehuss, Esquire, and Jeremy Wright, Esquire, Washington, D.C.,

for the appellant.

Carl E. Hobbs II, Esquire, and Bianca Manns, Washington, D.C., for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Vice Chairman Harris recused herself and

did not participate in the adjudication of this appeal.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND ORDER

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

reversed the appellant’s removal for unacceptable performance. For the reasons

discussed below, we GRANT the agency’s petition for review . We VACATE the

initial decision and REMAND the case to the regional office for further

adjudication consistent with Santos v. National Aeronautics & Space

Administration, 990 F.3d 1355 (Fed. Cir. 2021), and the guidance below.

BACKGROUND

¶2 The appellant held the GS-12 Auditor position with the agency’s Office of

Inspector General, Headquarters Audit Division, Office of Audit. Howell v.

Department of Housing and Urban Development, MSPB Docket No. DC-0432-13-

6622-I-1, Initial Appeal File (IAF), Tab 1 at 2; Howell v. Department of Housing

and Urban Development, MSPB Docket No. DC-0432-13-6622-I-2, Appeal File

(I-2 AF), Tab 67, Initial Decision (ID) at 2. 2 In July 2012, the agency placed him

on a 120-day performance improvement plan (PIP). I-2 AF, Tab 12 at 83-101.

The agency later extended the PIP until January 2013, to account for the

appellant’s absence due to a death in his family. Id. at 82. In April 2013, the

agency proposed the appellant’s removal for unacceptable performance. Id.

at 71-81. After the appellant responded, the agency removed him, effective

August 2013. Id. at 12, 14-18. This appeal followed. IAF, Tab 1.

¶3 The administrative judge held the requested hearing and issued an initial

decision reversing the removal. ID at 1. Because she reversed the appellant’s

removal on other grounds, the administrative judge did not address his harmful

error claim. ID at 23 n.12. She did, however, deny the appellant’s affirmative

defenses of retaliation for engaging in equal employment opportunity (EEO)

2

The administrative judge initially dismissed this appeal without prejudice pending an

ongoing equal employment opportunity claim, the appellant filed a petition for review

of that dismissal, and the Board forwarded the matter for refiling, resulting in the

separate docket numbers associated with this one matter. ID at 3 n.3.

3

activity and discrimination on the bases of sex, race, national origin, and

disability. ID at 22-34. The agency has filed a petition for review. Howell v.

Department of Housing and Urban Development, MSPB Docket No. DC-0432-13-

6622-I-2, Petition for Review (PFR) File, Tab 1. The appellant has filed a

response, PFR File, Tab 8, and the agency has replied, PFR File, Tab 11. 3

DISCUSSION OF ARGUMENTS ON REVIEW

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

to prevail in a performance-based removal appeal under chapter 43, the agency

must establish the following by substantial evidence: (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); (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,

3

In addition to the petition for review, response, and reply pleadings, PFR File, Tabs 1,

8, 11, the record includes several additional filings. The appellant filed a separate

motion to dismiss the agency’s petition for review because the agency had not provided

interim relief. PFR File, Tab 5; see generally 5 C.F.R. § 1201.116(a) (requiring that an

agency’s petition for review generally be accompanied by certification that it has

provided interim relief, if the initial decision ordered interim relief). The agency filed a

response, rightly noting that the administrative judge did not order interim relief. PFR

File, Tab 7; ID at 35-41; see Cole v. Department of the Air Force, 120 M.S.P.R. 640,

¶ 20 n.5 (2014) (denying an appellant’s request to dismiss an agency’s petition for

review for failing to provide interim relief because the administrative judge did not

order interim relief). The appellant then filed a pleading requesting that the Board

order immediate interim relief, PFR File, Tab 9, to which the agency also responded,

PFR File, Tab 13. Because the administrative judge did not order interim relief, his

request for such relief is denied.

4

115 M.S.P.R. 533, ¶ 5 (2010). 4 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).

¶5 The administrative judge found that the agency met its burden for

criteria (1), (2), and (3). ID at 6-11. However, she found that the agency failed

to prove that it afforded the appellant a reasonable opportunity to improve, as

required by criterion (4), or that the appellant’s performance remained

unacceptable, as required by criterion (5). ID at 12-22. We do not reach any

conclusions as to criteria (4) and (5) at this time because we must remand this

appeal for the agency to prove an additional criterion that was not addressed

during the proceedings below. 5

Remand is required in light of Santos.

¶6 During the pendency of the petition for review in this case, the U.S. 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 the 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

4

Although Lee provides that performance standards must be valid under 5 U.S.C.

§ 4302(b)(1), the National Defense Authorization Act of 2018 redesignated

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

131 Stat. 1283, 1619 (2017). Accordingly, 5 U.S.C. § 4302(c)(1) now sets forth the

statutory requirements for a valid performance standard.

5

The parties have not disputed the administrative judge’s findings concerning

criteria (1), (2), or (3). Therefore, we have not addressed them here. See 5 C.F.R.

§ 1201.115 (reflecting that the Board normally will consider only the issues raised by

the parties on review).

5

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 argument and evidence on this issue, and shall

hold a supplemental hearing if appropriate. Id., ¶ 17.

On remand, the administrative judge should further develop the record and revisit

her findings as to whether the agency gave the appellant a reasonable opportunity

to improve and demonstrate acceptable performance.

¶7 To determine whether an agency has afforded an employee a reasonable

opportunity to improve, 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 for the employee to

demonstrate acceptable performance. Lee, 115 M.S.P.R. 533, ¶ 32. An agency

may fail to meet these criteria if it does not provide an appellant with the

supervisory assistance promised in the PIP. E.g., Thompson v. Department of the

Army, 122 M.S.P.R. 372, ¶¶ 20, 30 (2015); Thompson v. Farm Credit

Administration, 51 M.S.P.R. 569, 579 (1991); Adorador v. Department of the

Air Force, 38 M.S.P.R. 461, 464-66 (1988).

¶8 The administrative judge found below that the agency failed to meet its

burden of proving that it provided a reasonable opportunity to improve, primarily

based on her conclusion that the agency failed to fulfill its self -imposed

obligation to meet with the appellant every 2 weeks. ID at 13-17. The

administrative judge determined that the parties provided contradictory testimony

on this point and she made credibility determinations in favor of the appellant’s

version of events. ID at 14-15.

¶9 The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing and may overturn such

determinations only when it has “sufficiently sound” reasons for doing so.

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining

6

the deference afforded to an administrative judge’s credibility findings); Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987) (recognizing relevant

factors for assessing credibility). The Board may find sufficiently sound reasons

to overturn such determinations if they are incomplete, inconsistent with the

weight of the evidence, and do not reflect the record as a whole. Faucher v.

Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). As further explained

below, we find that the administrative judge must revisit her credibility findings

on remand because she did not properly characterize some witness testimony and

failed to account for evidence corroborating the agency’s version of events. Id.,

¶¶ 11-18 (overturning an administrative judge’s credibility finding regarding a

witness who did nothing when the appellant allegedly sexually harassed h er

because the administrative judge failed to take into account either the witness’s

explanation for her inaction or the corroborating statements of other witnesses).

¶10 The organizational structure of the appellant’s supervisory chain and a

timeline are particularly relevant for analyzing whether the appellant was

provided a reasonable opportunity to improve during the July 2012 to

January 2013 PIP. During the PIP, the appellant was assigned to a Departmental

Enforcement Center (DEC) review project. I-2 AF, Tab 12 at 101. As an Auditor

on the DEC review project, the appellant worked closely with the Auditor in

Charge (AIC) assigned to that project. I-2 AF, Hearing Transcript (HT) at 9-10

(testimony of the AIC), I-2 AF, Tab 55, Hearing Compact Diskette (HCD)

(testimony of the appellant, 7:53, 8:11). 6 The AIC testified that her role was not

supervisory, but it did require that she provide first-level approval of the

appellant’s work on the DEC review project and assess his performance. HT

at 14, 50-52 (testimony of the AIC). She further testified that, as the AIC, she

6

Although the parties provided the Board with transcripts for much of the hearing,

some testimony, including the appellant’s, is not transcribed. Therefore, in some

instances we have cited to the hearing transcript and in others to the hearing

compact diskette.

7

reviewed the appellant’s work at least once or twice a week. Id. at 10-11. The

appellant’s supervisor at the beginning of his PIP was a Deputy Director;

however, she became the Acting Director partway through the PIP, around the

August to September 2012 timeframe. An Assistant Director began actively

supervising the appellant around the same August to September 2012 timeframe.

HT at 124, 158-59 (testimony of the Deputy Director), 308-11 (testimony of the

Assistant Director).

¶11 The Deputy Director issued the appellant’s PIP. I-2 AF, Tab 12 at 82-83.

Among other things, the PIP indicated that she would be monitoring the

appellant’s performance and she would be supervising the project for which he

was responsible, the appellant was expected to advise her of any significant

developments or problems, and she would meet with him every other week to

discuss his progress. Id. at 83, 100-01. However, as previously discussed,

organizational changes resulted in her taking on a more senior role during the PIP

and the Assistant Director became more active in supervising the appellant. HT

at 124, 158 (testimony of the Deputy Director), 308-11 (testimony of the

Assistant Director). Nevertheless, the Deputy Director testified that:

I met with—I think they were like every two weeks. The meetings

were every two weeks to discuss the PIP and where [the appellant]

was in terms of training, whether he needed additional resources,

whether he needed any additional help on the assignment. But . . .

the meetings sometimes would end because [of the

appellant’s behavior].

HT at 160-61 (testimony of the Deputy Director).

¶12 The administrative judge discussed the Deputy Director’s testimony,

generally. While doing so, her analysis included the following:

[The Deputy Director] testified that she met with the appellant and

[the Assistant Director] every 2 weeks during the PIP but that the

meetings ended because of the appellant’s behavior. She did not

indicate in her testimony how many meetings were held or when she

stopped holding the meetings. Nor did she explain what it was about

8

the appellant’s behavior that she found so problematic as to cause

her to stop holding the meetings.

ID at 14. Although the administrative judge seems to have co nstrued the Deputy

Director’s testimony as demonstrating that the meetings completely stopped, we

read the testimony as suggesting that the meetings were held every 2 weeks, but

some were cut short due to the appellant’s behavior. HT at 160-61 (testimony of

the Deputy Director).

¶13 Further, although the administrative judge faults the Deputy Director for not

explaining what it was about the appellant’s behavior that she found so

problematic, the transcript shows that the administrative judge did not permit

testimony on this issue because the appellant was not charged with misconduct.

Id. Administrative judges have broad discretion in regulating the course of the

hearing, but we find that it was an abuse of that discretion to exclude testimony

about the appellant’s conduct at PIP meetings and then rely, in part, on the

absence of that testimony to find that the agency failed to meet its burden . See

Beck v. Department of the Navy, 997 F.3d 1171, 1184-86 (Fed. Cir. 2021)

(finding that administrative judges abused their discretion by preve nting an

appellant from deposing witnesses relevant to his case); see generally Thomas v.

U.S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that an

administrative judge has broad discretion to regulate the course of the hearing and

exclude evidence that has not been shown to be relevant or material, but a party

may establish an abuse of that discretion if the disallowed evidence could have

affected the outcome); Fulton v. Department of the Army, 95 M.S.P.R. 79,

¶¶ 11-16 (2003) (recognizing that although administrative judges have broad

discretion to exclude witnesses if a party has not shown their testimony would be

relevant, material, and nonrepetitious, the administrative judge abused his

discretion by excluding certain witnesses that would have provided

relevant testimony).

9

¶14 At the hearing, the Assistant Director also described meeting with the

appellant on a regular basis. HT at 337-38, 340-41 (testimony of the Assistant

Director). The agency asked what kind of meetings he had with the appellant

during the PIP and the Assistant Director responded, “we had informal

meeting[s], and we had progress status – progress meeting[s]. The progress

meeting used to be every two weeks.” HT at 340. The Assistant Director also

stated that he talked with the appellant, informally, at least once a week. Id.

at 341. In addition, the Assistant Director’s proposal to remove the appellant

described holding PIP meetings with the appellant and the Deputy Director, and

indicates that some were unproductive because of the appellant’s attitude.

I-2 AF, Tab 12 at 77. Despite this testimony and evidence, the administrative

judge found that the Assistant Director “did not mention any meetings with the

appellant and [the Deputy Director] in his hea ring testimony. That seems

particularly odd if, as [the Deputy Director] asserted, those meetings ceased

because of the appellant’s behavior.” ID at 15.

¶15 The administrative judge found that the appellant testified that the Deputy

Director did not give him any feedback during the PIP. ID at 14. However, this

overlooks or at least oversimplifies the appellant’s actual testimony.

The appellant did testify that he felt as if he did not receive sufficient feedback

from the Assistant Director for purposes of improving, and the Deputy Director

“was not involved at all in the PIP.” HCD (testimony of the appellant, 8:01).

However, he later acknowledged having meetings with the Deputy Director in her

office during the PIP period, without indicating how often t hey occurred or

suggesting that they altogether ceased at some point. HCD (testimony of the

appellant, 8:55).

¶16 Aside from the appellant’s testimony on this matter, the appellant’s

response to the proposed removal also included an assertion that the Assis tant

Director “began attending the PIP meetings in mid-October,” which further

evidences the existence of these meetings, generally. I-2 AF, Tab 12 at 41. The

10

administrative judge appears to have overlooked that evidence. ID at 14-15. She

also appears to have overlooked relevant language in the proposal to remove the

appellant. Id. The administrative judge acknowledged one notation about the

Assistant Director and the AIC meeting with the appellant to provide feedback,

finding that it supported a conclusion that the Deputy Director did not participate

in PIP meetings. ID at 15 (citing I-2 AF, Tab 12 at 80). However, she did not

acknowledge other notations in the proposal, which specifically described the

Assistant Director and the Deputy Director holding PIP progress meetings with

the appellant. I-2 AF, Tab 12 at 72, 77.

¶17 We appreciate the administrative judge’s concern that the agency failed to

present detailed documentary evidence of biweekly PIP meetings. ID at 15-16;

cf. Thompson, 122 M.S.P.R. 372, ¶¶ 20-26 (crediting an appellant’s testimony

that his supervisor provided only 2 of the 21 promised meetings during an

improvement period, over testimony from the supervisor to the contrary, in part

because the agency failed to present meeting notes or memoranda). We also

recognize the appellant’s general assertion that he did not receive adequate

feedback. HCD (testimony of the appellant, 8:01). Nevertheless, the substantial

evidence burden of proof is not a high one. 7 See, e.g., Towne v. Department of

the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013) (recognizing that substantial

evidence is a lesser standard of proof than preponderance of the evidence a nd, to

7

The administrative judge also observed that the Assistant Director, who was actively

serving as the appellant’s first-line supervisor by August or September 2012, was not

aware of pertinent aspects of the PIP, including the performance defici encies that led to

it or the specific requirements of it, until he received a copy of the PIP in

November 2012. ID at 15-17. According to the administrative judge, the approximate

44-day period after which the Assistant Director had a copy of the appella nt’s PIP letter

containing the exact requirements of the PIP was insufficient to afford the appellant a

reasonable opportunity to improve. Id. On remand, the administrative judge should

consider whether evidence regarding the existence of performance meetings with the

Deputy Director and the appellant’s own admission that the Assistant Director “began

attending the PIP meetings in mid-October,” is sufficient for the agency to meet its

burden to show that it provided the appellant with an opportunity to im prove. I-2 AF,

Tab 12 at 41.

11

meet this standard, the agency’s evidence need not be more persuasive than that

of the appellant).

¶18 To summarize, the appellant’s PIP ran for a lengthy period, between

July 2012 and January 2013. Among other things, the record includes testimony

from the AIC that she reviewed the appellant’s work on the DEC review project

throughout the PIP and provided feedback. HT at 10-11, 79, 101 (testimony of

the AIC). It also includes testimony from the Assistant Director and Deputy

Director that they regularly met with the appellant and provided feedback. HT

at 160-61 (testimony of the Deputy Director), 340-41 (testimony of the Assistant

Director). Their testimony is supported by the appellant’s testimony and

documentation showing work he produced during the PIP with critiques of that

work from both the AIC and the Assistant Director and specific instructions for

the appellant to make revisions. I-2 AF, Tab 22 at 21-29, Tab 23 at 4-36, Tab 24

at 4-24; HCD (testimony of the appellant, 8:55). Additionally, the record

includes a detailed memo memorializing an October 2012 meeting between the

appellant, the Assistant Director, and the AIC describing the appellant’s

deficiencies, specific areas of concern, and recommendations for moving forward.

I-2 AF, Tab 25 at 9-10. Subsequent messages memorialize a December 2012

meeting between the same individuals, also talking about areas of needed

improvement and corresponding resources. Id. at 5, 7. The record also includes

evidence of the appellant completing a number of training courses during the

relevant period, consistent with the agency’s promise that it would look for and

schedule training that would help improve his performance. Compare I-2 AF,

Tab 12 at 100, with I-2 AF, Tab 27 at 26.

¶19 On remand, the administrative judge should allow the parties to submit

additional argument and evidence regarding the PIP meetings, because she

hindered the parties’ ability to do so below. She must then issue new and

complete findings as to whether the agency proved by substantial evidence that it

gave the appellant a reasonable opportunity to improve and demonstrate

12

acceptable performance. Among other things, those findings should consider and

address the evidence described above.

On remand, the administrative judge should make new findings as to whether the

agency met its burden of showing that the appellant’s performance

remained unacceptable.

¶20 In placing the appellant on the PIP, in July 2012, the agency explained that

his performance had fallen below acceptable levels in seven core competencies

across all three of his critical elements. I-2 AF, Tab 12 at 84, 95, 99. In its

April 2013 proposal to remove him, the agency indicated that the appellant’s

performance remained unacceptable in three core competencies across two critical

elements. Id. at 71, 76-80. Specifically, the agency determined that his

performance remained unacceptable for the “professional knowledge” core

competency and its parent critical element, “job knowledge and technical ski lls,”

as well as the “technical skills” and “analytical skills” core competencies and

their parent critical element, “application of job knowledge and technical skills.”

Id. at 76-79.

¶21 The administrative judge did not substantively address whether the

appellant’s performance remained unacceptable. Instead, the administrative judge

concluded that the agency failed to meet its burden for this criterion because the

appellant’s performance standards of record differed from the standards used for

his removal. ID at 18-22. According to the administrative judge, those

inconsistencies were fatal to the agency’s case. Id. We disagree.

¶22 The appellant’s performance plan of record, as signed by the appellant each

year and further documented by the agency’s official performance appraisal

manual, identifies the critical elements of his position and defines four rating

levels. I-2 AF, Tab 13 at 6-17, Tab 17 at 4-26, Tab 26 at 10, 30-31, Tab 27

at 16-24. Most relevant to this appeal, the plan defines the lowest t wo ratings as:

Fully Successful: The employee’s performance demonstrates

achievement of, or substantial progress toward, meeting the core

competencies. Employees must average a “2” or higher on the core

13

competencies identified within the Element in order to be rated Fully

Successful for the Element overall.

Unacceptable: The employee’s performance fails to demonstrate

achievement of or progress toward achievement of any one of the

core competencies within the Element; performance has a negative

consequence on organizational goals. Employees must be rated

Unacceptable for the overall Element if any of the core competencies

are rated “1” within the Element.

I-2 AF, Tab 13 at 6, Tab 26 at 30-31. 8 If an employee is unsuccessful in one or

more critical elements, his summary rating will likewise be unacceptable.

I-2 AF, Tab 13 at 6. Based on this performance plan, if all other chapter 43

requirements are met, a rating of “1” in any core competency would support a

performance-based removal. Id.; see Lee, 115 M.S.P.R. 533, ¶ 5; see also

Wallace v. Department of the Air Force, 879 F.2d 829, 834 (Fed. Cir. 1989)

(recognizing that an appellant’s failure to meet a single component of one

critical element may be sufficient to justify removal for

unacceptable performance).

¶23 As the administrative judge correctly noted, the agency’s various

documentation and testimony contain some inconsistent or imprecise language in

describing the appellant’s performance and performance expectations. ID

at 18-22. For example, in one notation, the PIP provided the following: “[a]s

stated in your performance plan, in order for performance to be considered as

being at the Fully Successful level for a GS-12, you must generally and with

consistency meet the standards identified at the Fully Successful l evel.” I-2 AF,

Tab 12 at 85; ID at 17 n.11, 21-22. However, that is not the language used in the

appellant’s performance plan. See supra ¶ 22. The statement is also circular,

8

The agency’s official performance appraisal manual provides different definitions for

different employees. I-2 AF, Tab 26 at 29-31. Based on that manual, the performance

of Office of Audit employees can be deemed “unacceptable” based on a single core

competency, but employees in some other components can be deemed “unacceptable”

only if they are deficient in a majority of core competencies. Id. The appellant has

acknowledged that he was employed in the Office of Audit. IAF, Tab 1 at 2.

14

essentially warning that the appellant would not be fully successful unless he met

the fully successful standards. In another example, the Assistant Director’s

appraisal of the appellant after the PIP included a form on which he selected

ratings for each critical element and its corresponding core competencies.

I-2 AF, Tab 48 at 2-13; ID at 19-21. Although the Assistant Director completed

the form consistent with the appellant’s actual performance plan, in which failure

in a single core competency warranted an “unacceptable” rating for its parent

critical element, the form’s instructions described a performance standard that

did not apply. 9 Compare I-2 AF, Tab 13 at 6, with I-2 AF, Tab 48 at 3-8.

¶24 Elsewhere, in the proposal to remove the appellant, the agency introduced

additional language. While discussing the “professional knowledge” core

competency, the proposal indicated that the appellant “more than occasionally

failed to demonstrate a complete understanding and knowledge of different parts

of a work paper.” I-2 AF, Tab 12 at 76; ID at 20. However, that language is not

in the appellant’s performance plan.

¶25 Although we appreciate the administrative judge’s concern for these and

other similar instances of the agency using inconsistent or imprecise language, as

well as the Assistant Director’s mistakenly using an inapplicable form, ID

at 18-22, we disagree that they are fatal to the agency’s case. The appellant’s

performance standards remained the same before, during, and after the PIP. The

agency is required to present merely substantial evidenc e that 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,

9

The form’s instructions provided that a critical element rating was based on the

majority of its core competencies. I-2 AF, Tab 48 at 3. That standard is consistent with

the performance standard for employees in offices other than the appellant’s. See supra

¶ 22 n.8. The administrative judge discussed the standard described on the form,

without acknowledging either that the standard applied to those other employees or that

the Assistant Director ignored those standards and properly completed the form

consistent with the appellant’s performance plan. ID at 19-20.

15

i.e., his “performance fail[ed] to demonstrate achievement of or progress towar d

achievement of any one of the core competencies within the Element;

performance ha[d] a negative consequence on organizational goals.”

I-2 AF, Tab 13 at 6; Lee, 115 M.S.P.R. 533, ¶ 5.

¶26 Because we are remanding this appeal, we do not make findings on whether

the agency met its burden to show the appellant’s performance was unacceptable

while on the PIP. As the hearing officer, the administrative judge is in the best

position to make factual findings and detailed credibility assessments on this

issue. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 27 (2015).

If, after any additional evidence presented on remand, she finds that the agency

gave the appellant a reasonable opportunity to improve and demonstrate

acceptable performance, she should make new findings as to whether the agency

met its burden to prove, by substantial evidence, that the appellant’s performance

remained unacceptable. These findings should be consistent with our analysis,

above, of this issue.

On remand, the administrative judge should make new findings as to the

appellant’s EEO reprisal claim.

¶27 As noted above, the administrative judge denied the appellant’s affirmative

defenses of retaliation for engaging in EEO activity, discrimination on the bases

of sex, race, and national origin, and disability discrimination on the basis of a

failure to accommodate. ID at 22-34. The appellant does not challenge these

findings on review. Nonetheless, we have reviewed the administrative judge’s

findings and discern no basis to disturb her findings regarding the appellant’s

race, sex, national origin, and disability discrimination claims. 10

10

As the administrative judge considered the appellant’s claims of sex discrimination,

race discrimination, national origin discrimination, and EEO reprisal, she applied the

burden shifting scheme set out in Savage v. Department of the Army, 122 M.S.P.R. 612,

¶ 51 (2015). ID at 23-24. Regarding the sex, race, and national origin discrimination

claims, the administrative judge found that the appellant failed to prove that any of

those considerations was a motivating factor in this removal action. ID at 31-34.

During the period that followed the initial decision, the Board found that, in order to

16

¶28 Turning to the appellant’s EEO activity, the administrative judge found that

the appellant proved that a prior discrimination claim was a motivating factor in

his removal, ID at 24-29, but the agency proved that it would have taken the same

removal action in the absence of that improper motive, ID at 29-31. During the

period that followed the initial decision in this appeal, the Board recognized that

although the motivating factor standard applies to claims of reprisal for engaging

in activity protected under Title VII, an appellant must prove but-for causation in

the first instance for a claim of reprisal for engaging in activity protected under

the Americans with Disabilities Act Amendments Act of 2008. Pridgen v. Office

of Management & Budget, 2022 MSPB 31, ¶¶ 16, 21, 35-40; Haas v. Department

of Homeland Security, 2022 MSPB 36, ¶ 32. Accordingly, the nature of the

appellant’s EEO activity is relevant, but the nature of that activity is not apparent

to us—the initial decision and numerous pleadings submitted by the parties

simply refer to the appellant’s EEO activity as discrimination claims, generally.

E.g., ID at 24-28; I-2 AF, Tab 61 at 24-28.

¶29 In issuing a remand initial decision, the administrative judge should make

new findings regarding the appellant’s EEO reprisal claim, applying the proper

standard or standards. We recognize that her analysis is, absent new evidence,

unlikely to alter her conclusion that the appellant’s affirmative defense of EEO

reprisal fails. See Pridgen, 2022 MSPB 31, ¶ 21 n.4 (noting that some courts

consider but-for standard to be more onerous). Nonetheless, we find it

appropriate to remand this issue to the administrative judge to make findings in

the first instance.

attain full relief for claims arising under Title VII, the appellant must prove that

discrimination was a but-for cause of the action. Pridgen v. Office of Management &

Budget, 2022 MSPB 31, ¶¶ 22, 42. Because the administrative judge found that the

appellant failed to prove that his sex, race, or national origin was a motivating factor in

his removal, and the parties have not disagreed on review, we do not reach the question

of whether his sex, race, or national origin was a but-for cause of the removal action.

Id., ¶ 22.

17

On remand, if the agency meets its burden, the administrative judge should

consider the appellant’s harmful error claim.

¶30 Because she found that the agency failed to meet its burden, the

administrative judge found it unnecessary to address the appellant’s claim of

harmful procedural error. ID at 22 n.12. The appellant alleged that his PIP used

the wrong performance standards and this resulted in a harmful error.

I-2 AF, Tab 29 at 17; see generally 5 C.F.R. § 1201.56(b)(2)(i)(C) (recognizing

that an appellant bears the burden of proving harmful procedural error by

preponderant evidence); Stephen v. Department of the Air Force, 47 M.S.P.R.

672, 681, 685 (1991) (recognizing that an agency error is harmful only when the

record shows that the procedural error was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error). If, on remand, the administrative judge finds the agency met

its burden, she should make findings on the appellant’s harmful error claim.

¶31 In conclusion, we must remand the appeal in light of Santos. On remand,

the administrative judge shall accept argument and evidence on the issue of

whether the appellant’s performance was unacceptable prior to the agency placing

him on a PIP. The administrative judge should also permit the parties to present

evidence as to why some of the appellant’s PIP meetings ended early. She shall

hold a supplemental hearing if appropriate. See Lee, 2022 MSPB 11, ¶ 17.

The administrative judge shall then issue a new initial decision consistent with

Santos. See id.

¶32 If the agency makes the additional showing required under Santos on

remand, the administrative judge may incorporate her prior findings regarding the

agency proving that OPM approved its performance appraisal system, the agency

communicating to the appellant his performance standards, and the validity of its

performance standards. See supra ¶ 5. The administrative judge should then

revisit her findings, consistent with our guidance above, regarding the agency’s

burden of proving that it gave the appellant a reasonable opportunity to improve

18

and demonstrate acceptable performance and that his performance remained

unacceptable. Supra ¶¶ 7-26. If the argument or evidence on remand regarding

the appellant’s pre-PIP performance and the reason some PIP meetings ended

early affects the administrative judge’s analysis of the agency’s burden or the

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

the remand initial decision, while also ensuring that the correct standards are

applied. 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); supra ¶ 27 n.10, ¶ 28.

ORDER

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