The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGELIO VERA, DOCKET NUMBER
Appellant, DA-0432-16-0517-I-1
v.
DEPARTMENT OF THE ARMY, DATE: October 13, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Gary Mellor, Corpus Christi, Texas, for the appellant.
Kenneth M. Muir, Corpus Christi, Texas, 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 demoting him for unacceptable performance,
pursuant to 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT
the appellant’s 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 case to the Dallas Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
¶2 The appellant formerly held a WG-10 Machinist position with the agency.
Initial Appeal File (IAF), Tab 1 at 2. On February 23, 2016, the agency issued a
memorandum notifying the appellant that his performance failed to meet the
requirements for the minimally successful performance level for sub-elements 1A
and 1B of Responsibility 1, “Technical Competence,” and sub-element 3C of
Responsibility 3, “Working Relationships and Communications” for the most
recent performance period. 2 IAF, Tab 5 at 21-22, 52-55. Effective that day, the
agency placed the appellant on a 60-day performance improvement plan (PIP).
Id. at 17, 54, 56-59. The memorandum informed the appellant that if he
continued to fail to meet the requirements at the minimally successful level in the
above critical elements at the end of the PIP, his supervisor would have “no
alternative but to recommend that action be taken to initiate [the appellant ’s]
reassignment, demotion, or removal from Federal service.” Id. at 54. Following
completion of the PIP, the agency demoted the appellant to the WG-9 Machine
Tool Operator position, effective August 7, 2016, based on his failure to improve
his performance to a minimally acceptable level during the PIP period. Id.
at 14-16.
2
The appellant’s Fiscal Year 2015 performance standards identify each of the
sub-elements of the four Responsibilities as “critical elements.” IAF, Tab 5 at 21-22.
The proposal letter, the memorandum placing the appellant on the PIP, and the PIP
itself all identify each Responsibility as a “critical element” with corresponding
sub-elements. Id. at 17-18, 52-57. The administrative judge identified each
sub-element of the Responsibilities as “critical elements.” IAF, Tab 23, Initial Decision
(ID) at 2. For the sake of convenience, we have referred to each lettered component of
each Responsibility as a “critical element” throughout this decision. Regardless of the
terminology used, the PIP specifically informed the appellant that his performance
would be less than minimally successful and he would fail the PIP if he did not meet the
requirements of Responsibilities 1A, 1B, and 3C during the PIP period. IAF, Tab 5
at 56-57.
3
¶3 The appellant timely appealed his demotion to the Board. IAF, Tab 1.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision finding that the agency proved by substantial evidence that the
appellant’s performance remained deficient in Responsibility 3C during the PIP
period. IAF, Tab 23, Initial Decision (ID) at 1-10. The administrative judge did
not address Responsibilities 1A and 1B. ID at 10 n.6. Additionally, the
administrative judge found that the appellant had not shown that the agency
committed harmful procedural error in reaching its decision to demote him. ID
at 10-11.
¶4 The appellant timely filed a petition for review challenging the
administrative judge’s decision. Petition for Review (PFR) File, Tab 1. The
agency filed a response in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In a performance-based action under chapter 43, an agency must establish
each of the following by substantial evidence 3: (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
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). Our
reviewing court has described substantial evidence as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as ad equate to support
a conclusion.” Leatherbury v. Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir.
2008) (quoting Bradley v. Veterans Administration, 900 F.2d 233, 234 (Fed. Cir.
1990)); see Adamsen v. Department of Agriculture, 116 M.S.P.R. 331, ¶ 7 (2011).
Additionally, it “must do more than create a suspicion of the fact to be established. . . .”
Bradley, 900 F.2d at 234 (quoting National Labor Relations Board v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 300 (1939)); see Adamsen, 116 M.S.P.R.
331, ¶ 7.
4
improve; 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. White v. Department of Veterans Affairs,
120 M.S.P.R. 405, ¶ 5 (2013) 4; Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 5 (2010).
¶6 On review, the appellant challenges the administrative judge ’s findings that
the agency cured its invalid performance standards, that it warned him of his
inadequacies during the appraisal period and give him a reasonable opportunity to
improve his performance, and that his performance remained unacceptable in at
least one critical element during the PIP period. PFR File, Tab 1 at 5-12. The
appellant also asserts that the agency committed harmful error in executing the
PIP by failing to quantify his individual defect rate during the PIP and by failing
to grant his request for a second PIP. Id. at 5-6, 12.
The agency cured its invalid performance standards by communicating sufficient
information about the appellant’s performance requirements at the beginning and
throughout the PIP period.
¶7 In his petition for review, the appellant argues that the administrative judge
erred in finding that the agency cured its invalid performance standards during
the PIP. Id. at 5, 12. The administrative judge concluded that the appellant ’s
performance standards were invalid because they required extrapolation more
than one level below 5 the “successful” level, and did not meaningfully distinguish
4
Although White provides that criterion 3 requires that performance standards be valid
under 5 U.S.C. § 4302(b)(1), the National Defense Authorization Act for Fiscal
Year 2018 redesignated subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
5
Although the administrative judge stated that the invalid standards required
extrapolation more than one level above the “successful” level, it is clear in context that
she intended to say that the standards required extrapolation more than one level below
the “successful” level. ID at 6. Any error in this misstatement was inadvertent and
harmless, and did not affect the outcome of the decision. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was
5
between “needs improvement” and “fails” in a manner that would inform the
appellant of what was required of him to perform at the minimally successful
level. ID at 6; see Henderson v. National Aeronautics & Space Administration,
116 M.S.P.R. 96, ¶ 13 (2011). Although performance standards must set forth the
minimum level of performance necessary to avoid a performance-based action in
order to be valid, an agency may cure invalid standards by communicating
sufficient information regarding performance requirements at the beginning of, or
during, a PIP. Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18.
¶8 In finding that the agency cured the invalid standards, the administrative
judge noted that agency officials communicated to the appellant his performance
deficiencies prior to and during the PIP, including during his midpoint evaluation
in January 2016, and met with him on six occasions during the PIP period to
discuss performance concerns. ID at 6-8; IAF, Tab 5 at 24-25; Tab 6 at 11, 14,
31, 54, 59; Tab 21, Hearing Compact Disc (HCD) (testimony of the appellant’s
supervisor); see Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18. As the administrative
judge observed, during the appellant’s midpoint evaluation and prior to the PIP,
the agency informed him that his performance was “currently needing
improvement” because he already had received five deficiency reports up to that
point of the appraisal period. IAF, Tab 5 at 61. Additionally, the PIP indicated
that the appellant could receive no more than two additional deficiency reports
during the PIP period to avoid failing the PIP. Id. at 57. Consequently, we find
no error with the administrative judge’s conclusion that the agency cured its
facially defective performance standards by clearly communicating the
appellant’s performance requirements to him at the beginning of, and during, the
PIP period. See Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 23
(2013).
not prejudicial to a party’s substantive rights provided no basis for reversing an initial
decision).
6
The agency warned the appellant of the inadequacies of his performance during
the appraisal period and provided him with a reasonable opportunity to improve
his performance during the PIP.
¶9 The appellant also argues that he was not provided with a reasonable
opportunity to improve his performance during the PIP period, suggesting that his
work was unduly scrutinized and that favorable evidence of his work quality
during the PIP period was “summarily reject[ed]” by his supervisor. PFR File,
Tab 1 at 5-7, 10. In determining whether an agency has afforded an employee
with a reasonable opportunity to improve his performance during a PIP, relevant
factors include the nature of the duties and responsibilities of the employee ’s
position, the performance deficiencies involved, and the amount of time that is
sufficient to give the employee an opportunity to demonstrate acceptable
performance. Lee, 115 M.S.P.R. 533, ¶ 32.
¶10 As noted above, the appellant’s supervisor met with him almost weekly
during the PIP period to discuss concerns regarding his performance. IAF, Tab 5
at 24-25. The appellant’s supervisor testified that, in addition to the six meetings
during the PIP period, he and several other employees assisted the appellant with
his work during the PIP period. HCD (testimony of the appellant’s supervisor).
See Goodwin v. Department of the Air Force, 75 M.S.P.R. 204, 208-09 (1997)
(finding that the agency afforded the appellant a reasona ble opportunity to
improve when it gave her a detailed PIP letter and abundant written feedback
during the PIP, and her supervisor made herself available to provide assistan ce
but the appellant did not request further assistance). Accordingly, we find that
the appellant has not provided a sufficient basis to disturb the administrative
judge’s finding that he was afforded a reasonable opportunity to improve during
the PIP.
7
The record does not support the administrative judge’s finding that the
appellant’s performance was below minimally successful in Responsibility 3C
during the PIP period.
¶11 On review, the appellant argues that the agency erred in assessing his
performance during the PIP period by improperly relying on his receipt of 5230Rs
(or “write-ups”) as indicating unacceptable performance, and asserts that the
administrative judge erred by relying on this mischaracterization. PFR File,
Tab 1 at 5-6, 11-12; ID at 9-10.
¶12 As noted above, the appellant’s performance standards have four
Responsibilities with three sub-elements each. IAF, Tab 5 at 21-22. The
memorandum placing the appellant on the PIP indicated that his per formance was
below minimally acceptable in three of those Responsibilities: 1A, 1B, and 3C.
Id. at 17, 56-57. Because, as mentioned previously, the administrative judge
made no findings regarding whether the appellant’s performance was
unsatisfactory in Responsibilities 1A and 1B during the PIP period, we will focus
on Responsibility 3C.
¶13 Responsibility 3C, “Working Relationships and Communications,” required
that the appellant “complete travelers correctly.” Id. at 22, 57; HCD (testimony
of the proposing official). Specifically, this Responsibility required that the
appellant receive no more than two “quality defects issued for traveler errors”
during the PIP period. Id. at 57. Travelers are routing documents that travel with
the parts as they move between the different machining shops, and are used to
record measurements and to explain and document the work done on the parts.
HCD (testimony of the appellant’s supervisor); IAF, Tab 5 at 34-36; Tab 6
at 32-34. A “traveler error,” as described in the performance standards and in
testimony by the appellant’s senior rater and the proposing official, includes
errors in measuring a part or recording information on traveler documents, failing
to stamp a traveler, or incorrectly requesting to “bypass” a stage of the machining
8
process. IAF, Tab 5 at 22, 57; HCD (testimony of the proposing official); IAF,
Tab 6 at 14, 31, 54, 59.
¶14 As the administrative judge noted, when the agency’s quality control
department inspects a part and determines that it has a defect or was not repaired
to required specifications, a 5230R, or a “write-up” is issued identifying the error
or defect. ID at 9; HCD (testimony of the appellant’s supervisor). However, the
appellant’s supervisor also testified, and the record reflects that, “write-ups” can
be issued for a number of different types of errors, including for traveler errors,
for machining errors, and even for “point of discovery” defects, which apparently
relate to preexisting defects in the part discovered by an employee. IAF, Tab 5
at 5-6; Tab 18 at 6; HCD (testimony of the appellant’s supervisor);
HCD (testimony of the proposing official).
¶15 In concluding that the agency met its burden of proof concerning
Responsibility 3C, the administrative judge cited the appellant’s supervisor’s
testimony stating that “Critical Element C of Responsibility 3 relates to
write-ups” and the fact that the appellant received five “5230Rs [write-ups]”
during the PIP period. ID at 9-10; HCD (testimony of the appellant’s supervisor).
Yet, during the hearing, the proposing official also testified that in contrast to
Responsibility 1A, which dealt with the overall defect rate “regardless of what
defect [was] produced,” Responsibility 3C dealt “specifically with travelers being
incorrect.” HCD (testimony of the proposing official). Continuing, the proposing
official explained that he would “have to look at the specific defect[s]” to see
whether any of the write-ups issued during the rating period were “because
something wasn’t done correctly” on a traveler, and noted that he only could only
remember one defect received by the appellant during the PIP that “dealt with a
traveler dimension.” Id. There was no elaboration offered on the number of
quality defects issued to the appellant for traveler errors during the PIP period by
any of the agency’s witnesses. Thus, the agency failed to elicit testimony
9
supporting a finding that the appellant had more than one traveler error during the
PIP period.
¶16 Reviewing the agency’s documentary evidence similarly is not helpful in
discerning which of the errors that the appellant committed during the PIP period
were specifically “traveler errors.” The submitted documents clearly differentiate
the types of errors the appellant made prior to the PIP, and relate each error to a
specific job Responsibility, but a similar amount of detail was not provided
regarding the errors attributed to the appellant during the PIP period. Compare
IAF, Tab 6 at 11, 14, 31, 54, 59, with IAF, Tab 5 at 17-20. Comparing the
descriptions on the write-ups included in the record from the pre-PIP period for
known traveler errors, against the provided write-ups from the PIP period
similarly is not elucidating. Compare IAF, Tab 6 at 15, 18, 21, 24, 27, with IAF,
Tab 5 at 30, 39, 41, 49, 51. Consequently, we find that the agency has failed to
submit sufficient evidence demonstrating that the appellant received two “quality
defects issued for traveler errors” during the PIP period, 6 and thus cannot meet its
burden of proving by substantial evidence that the appellant’s performance was
below minimally successful in Responsibility 3C during the PIP period.
Accordingly, we vacate the administrative judge’s finding that the agency prove d
by substantial evidence that the appellant’s performance remained unacceptable
in Responsibility 3C at the end of the PIP period.
6
The PIP language itself is confusing and inconsistent in describing the maximum
number of errors the appellant could commit and still avoid failure of the PIP, stating in
sequential sentences that (1) “any two deficiencies” would result in PIP failure; (2) that
he could receive “no more than two deficiency reports”; and (3) that “any two
combinations” among the different deficiency types would result in an unsatisfactory
rating. IAF, Tab 5 at 57. The administrative judge interpreted this language to mean
that if the appellant committed “more than 2” errors during the PIP, his performance
would be considered unsatisfactory. ID at 7-8. Because we ultimately disagree with
the administrative judge’s findings regarding Responsibility 3C and conclude that the
agency failed to provide sufficient evidence that the appellant committed even two
quality defects for traveler errors during the PIP period, we need not resolve this
inconsistency at this stage of the proceedings.
10
This appeal must be remanded for the administrative judge to make findings
regarding Responsibilities 1A and 1B.
¶17 As noted above, the administrative judge did not make any findings
regarding Responsibilities 1A and 1B. ID at 10 n.6. In light of our determination
that the record does not support the administrative judge ’s conclusion that the
appellant’s performance was below minimally successful in Responsibility 3C
during the PIP period, and due to the fact that a full hearing was held below and
consequently, the administrative judge would be in the best position to address
these issues in the first instance, we remand this appeal for the administrative
judge to make the necessary findings concerning Responsibilities 1A and 1B.
On remand, the administrative judge must also permit the parties to provide
evidence and argument concerning whether the appellant’s placement on the PIP
was proper.
¶18 During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) held in Santos v. National
Aeronautics & Space Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021),
that part of the agency’s burden under 5 U.S.C. chapter 43 is to justify the
institution of the PIP by proving by substantial evidence that the employee’s
performance was unacceptable prior to that time. Following the issuance of
Santos, the Board issued an Opinion and Order in Lee v. Department of Veterans
Affairs, 2022 MSPB 11, ¶ 15, which incorporated the changes made by Santos
and set forth the agency’s burden of proof, concluding that in order to defend an
action under chapter 43 the agency must prove the following by substantial
evidence: (1) OPM approved its performance appraisal system and any
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appellant of the inadequacies in his
performance during the appraisal period and gave him an adequate opportunity to
11
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
¶19 The Federal Circuit’s decision in Santos applies to all pending cases,
including the instant appeal, regardless of when the events took place. Lee,
2022 MSPB 11, ¶ 16. Although the record in this appeal contains some evidence
indicating that the appellant’s performance leading up to the PIP was
unacceptable, see IAF, Tab 6 at 11, 14, 31, 54, 59, the parties must be provided
with the opportunity to present argument and additional evidence on the issue, see
Lee, 2022 MSPB 11, ¶¶ 15-17. On remand, the administrative judge shall accept
argument and evidence on this issue and shall then issue a new initial decision
consistent with Santos. See id., ¶ 17. If the agency makes the additional showing
required under Santos on remand, the administrative judge may incorporate her
prior findings on the other elements of the agency’s case and on the appellant’s
harmful procedural error affirmative defense claim in the remand initial decision.
See id.; ID at 10-11.
ORDER
¶20 For the reasons discussed above, we remand this case to the Dallas 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.