The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA HANSON-HODGE, DOCKET NUMBER
Appellant, DC-0432-14-0475-I-1
v.
SOCIAL SECURITY DATE: October 13, 2022
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Paula Hanson-Hodge, Upper Marlboro, Maryland, pro se.
Clary Simmonds, Esquire, Baltimore, Maryland, for the agency.
Donald K. Neely, Philadelphia, Pennsylvania, 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 her removal for unacceptable performance under 5 U.S.C. chapter 43.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
For the reasons discussed below, we GRANT the appellant’s petition for review ,
VACATE the initial decision, and REMAND the case to the Washington
Regional Office for further adjudication in accordance with this Remand Order
and Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021).
BACKGROUND
¶2 The agency removed the appellant from the GS-13 Paralegal Specialist
position based on the charge of unacceptable performance. Initial Appeal File
(IAF), Tab 9 at 27, 28, 91. Specifically, the agency found that the appellant was
not successful in the critical element “Achieves Business Results” which includes
the performance standard “[p]roduces a fair share of work according to
supervisory expectations,” because she did not reach a production quota level of
70% necessary to receive a rating of fully successful in the agency’s three -level
performance rating system. Id. at 93.
¶3 On appeal, the appellant alleged that the agency’s action violated 5 U.S.C.
§ 4303 and constituted retaliation for her prior equal employment opportunity
(EEO) activity. IAF, Tab 1. Based on her review of the record, the
administrative judge found that the agency proved by substantial evidence that:
(1) it took the action under a performance appraisal system approved by the
Office of Personnel Management (OPM); (2) the appellant’s performance
standards were valid and communicated to her; (3) the appellant’s performance in
the critical element “Achieves Business Results” was deficient as charged; and
(4) it provided the appellant with a reasonable opportunity to demonstrate
acceptable performance prior to effecting the removal action. IAF, Tab 43, Initial
Decision (ID) at 8-28. The administrative judge also found that the appellant
failed to show by preponderant evidence that the agency removed her in
retaliation for her protected activity of filing EEO complaints. ID at 28-31.
3
¶4 In her petition for review, 2 among other things, the appellant argues that the
70% production quota level expectation is merely unofficial because the agency’s
Commissioner did not approve it. Petition for Review (PFR) File, Tab 1. She
also asserts that other employees who did not make the 70% expectation did not
get removed, and the administrative judge did not allow a witness who would
have testified about employees who did not make the 70% expectation and were
not placed on an Opportunity to Perform Successfully (OPS) 3 or removed. Id.
The appellant further contends that her supervisors interfered with her ability to
produce at the 70% expectation by not allowing her to work on flexiplace. Id.
Additionally, the appellant asserts that the admini strative judge erred in finding
that the appellant’s supervisor was a credible witness. Id. She argues moreover,
that the administrative judge erred in finding that the appellant did not establish
her claim of retaliation for filing an EEO complaint because of the proximity in
time of the adverse action and her complaint. 4 Id.
2
The appellant attached a number of documents to her petition for review. Petition for
Review File, Tab 1. Under 5 C.F.R. § 1201.115(d), the Board will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has failed
to make such a showing, and thus we have not considered those documents in granting
the appellant’s petition for review. We note that one of the documents submitted on
petition for review is a Standard Form (SF) 50 showing that the appellant received a
within-grade increase based on a determination that her work performance was at an
acceptable level of competence. The determination of acceptable level of competence
was made on November 1, 2013, only 2 weeks before the agency proposed the
appellant’s removal for unacceptable performance. However, the parties did not submit
this SF-50 below and did not argue its significance. Thus, we have not weighed it in
reaching the decision to grant the petition for review.
3
An OPS is the agency’s performance improvement plan. IAF, Tab 9 at 29.
4
Following the submission of her petition for review, the appellant also filed a motion
for leave to file additional pleadings. PFR File, Tab 5. In this motion, the appellant
seeks leave to submit her previously mentioned SF-50, two declarations from the
American Federation of Government Employees union representat ive, and for the Board
to consider two cases (Salmon v. Social Security Administration, 663 F.3d 1378 (Fed.
Cir. 2011) and Wilson v. Department of Health & Human Services, 770 F.2d 1048 (Fed.
Cir. 1985)). The appellant has failed to explain how this additional evidence could not
4
ANALYSIS
¶5 At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) OPM approved its performance
appraisal system; (2) the agency communicated to the appellant the performance
standards and critical elements of her position; (3) the appellant’s performance
standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the
appellant of the inadequacies of her performance during the appraisal period and
gave her a reasonable opportunity to improve; and (5) the appellant’s
performance remained unacceptable in at least one critical element. White v.
Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). 5 As discussed
below, we discern no basis to disturb the administrative judge’s findings in the
initial decision.
The appellant has not established any error in the administrative judge findings
that the agency’s performance standards were valid and that the appellant was
provided a reasonable opportunity to improve.
¶6 Although the appellant stipulated that OPM approved the agency’s
performance appraisal system, IAF, Tab 41; ID at 8, she asserts, as she did below,
that the performance standards are not valid because the 70% benchmark was not
established by the agency Commissioner. The administrative judge addressed this
assertion, ID at 9, 13-14. She found that performance standards need not be
centrally established by agencies and there is no requirement that the 70%
minimum standard be handed down directly by the Commissioner. Id.; see
Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, ¶ 14 (2004); Wells v.
have been submitted below before the record closed or how it would change the initial
decision as required by 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion
for leave to submit additional evidence is denied.
5
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
Harris, 1 M.S.P.R. 208, 212 (1979), modified by Gende v. Department of Justice,
23 M.S.P.R. 604 (1984). As the administrative judge found, the managerial
authority to decide what agency employees must do to perform acceptably is
delegated to supervisors in the text of the critical element itself where it states
under “Achieves Business Results” that the employee must “[p]roduce a fair share
of work according to supervisory expectations.” IAF, Tabs 9, 10, Subtab 4t; ID
at 9; see Jackson, 97 M.S.P.R. 13, ¶ 14. We thus agree with the administrative
judge that there is no requirement that the performance standard be handed down
by the Commissioner.
¶7 The appellant’s assertion, that other employees who did not make th e 70%
expectation were not placed on an OPS plan or removed, is raised for the first
time on petition for review. PFR File, Tab 1. The Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). Here, the appellant has presented no such evidence.
¶8 The appellant asserts, however, that the administrative judge rejected
proposed witnesses that would have allowed the appellant to prove her assertion
that others did not make the 70% expectation, but were not placed on an OPS or
disciplined. The appellant does not identify who these witnesses were. The
administrative judge did deny some of the appellant’s witnesses as noted in the
summary of prehearing conference. IAF, Tab 41. However, there is no
suggestion that any of these witnesses would have testified to whether other
employees who did not meet the 70% benchmark were neither placed on an OPS
nor removed. Id. Further, the appellant did not object to the summary, despite
the administrative judge informing the appellant that she could do so, and thus
she is precluded from objecting on petition for review. See McCarthy v.
International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 25 (2011)
(finding that the appellant’s failure to timely object to rulings during the hearing
6
precludes her from doing so on petition for review), aff’d, 497 F. App’x 4 (Fed.
Cir. 2012); Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (stating
that the appellant’s failure to timely object to the administrative judge’s rulings
on witnesses precludes her from doing so on review).
¶9 The appellant reiterates the assertion she made below that she was denied a
reasonable opportunity to improve because the agency did not allow her to work
on flexiplace. PFR File, Tab 1. The administrative judge found this
unpersuasive. ID at 25. The administrative judge relied on the credible
testimony of the appellant’s supervisors to find that whether the appellant worked
from home or her office had no bearing on her productivity. Id. The appellant
argues that her supervisors’ testimony was not credible. However, the Board
must defer to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on observing of the demeano r of witnesses
testifying at a hearing; the Board 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) . We find that the appellant’s mere assertion
that her supervisors lied is not a sufficiently sound reason to overturn the
administrative judge’s credibility determination.
The appellant has not established any error in the administrative judge’s findings
as it relates to her claim of EEO retaliation.
¶10 Finally, the appellant asserts that she proved her affirmative defense of
retaliation for filing an EEO complaint because the agency took t he removal
action close in time to when she filed her complaint, and that the action must be
overturned on that basis. PFR File, Tab 1. We disagree. The administrative
judge considered the appellant’s assertion, and properly found that this evidence
alone was insufficient for the appellant to meet her burden. ID at 30 -31. She
found, based on the strong evidence, including the supervisors’ credible
testimony, that the appellant’s performance was unsuccessful, and that nothing in
the agency’s actions leading up to the appellant’s removal suggested that the
7
removal was motivated by anything other than the appellant’s performance
deficiencies. ID at 31.
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a Performance
Improvement Plan (PIP) was proper.
¶11 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below, we nonetheless must remand this appeal
for another reason. 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, that in addition to the five elements of the agency’s case set forth in
the initial decision, the agency must also justify the institution of a PIP by
proving by substantial evidence that the employee’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. Although the record
in this appeal already contains evidence suggesting that the appellant’s
performance leading up to the PIP was indeed unacceptable, we remand the
appeal to give the parties the opportunity to present argument and additio nal
evidence (including the SF-50 mentioned above) 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 argument and evidence on this issue, and shall hold a supplemental
hearing if appropriate. Id., ¶ 17.
¶12 The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
judge may incorporate her prior findings on the other elements of the agency’s
case and the appellant’s affirmative defense in the remand initial decision. See
8
id. 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 defense, she should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that
an initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
¶13 For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.