The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIO MALCOLM, DOCKET NUMBER
Appellant, DC-0432-15-1154-I-1
v.
DEPARTMENT OF COMMERCE, DATE: October 6, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Mario Malcolm, Silver Spring, Maryland, pro se.
Kathryn Siehndel, Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance 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 the appeal to the Washington Regional Office for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
further adjudication consistent with the decision of the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) in Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant held the position of Patent Examiner with the agency’s U.S.
Patent and Trademark Office. Initial Appeal File (IAF), Tab 8 at 48. On
October 17, 2014, he received a written warning of unacceptable performance in
the critical element of production. IAF, Tab 5 at 49-50. The agency afforded him
a period from October 19, 2014, to February 7, 2015, to increase his production to
at least the marginal level. Id. at 4. The appellant successfully improved his
production by completing the performance improvement period (PIP). Id. The
agency notified him that he was required to maintain at least the marginal level of
performance in the production critical element for a 1-year period from the start
of the PIP, id. at 4-5, and that his failure to comply with this requirement could
result in his removal. Id. at 5.
¶3 After determining that the appellant’s performance in the production critical
element was again unacceptable during the first maintenance period from
February 22 to May 16, 2015, the agency issued him a notice of proposed
removal. IAF, Tab 4 at 44-48. Upon consideration of his written reply, the
agency removed him for unacceptable performance in the critical element of
production, effective August 18, 2015. Id. at 35-36, 40-41.
¶4 The appellant filed a Board appeal of his removal but did not request a
hearing. IAF, Tab 1 at 1-4. After a close of record conference, the appellant
filed motions to compel discovery and to supplement the summary of the close of
record conference. IAF, Tab 11 at 3-6. He also submitted a detailed comparison
of two of his office actions allegedly showing that his supervisor’s multiple
requests for revisions of those actions harmed his production. Id. at 9-10, 12-28.
In an initial decision based on the written record, the administrative judge
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affirmed the appellant’s performance-based removal. IAF, Tab 13, Initial
Decision (ID) at 3, 14-15. He also denied the appellant’s motions. ID at 2 n.2.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶6 As noted, consistent with the Federal Circuit’s decision in Santos, 990 F.3d
at 1360-63, we are remanding this appeal for further adjudication. In Santos, the
court held for the first time that, in addition to the elements of a chapter 43 case
set forth by the administrative judge, an agency must also show that the initiation
of a PIP was justified by the appellant’s unacceptable performance before the
PIP. Id. Prior to addressing the remand, however, we consider the administrative
judge’s findings on the elements of a chapter 43 appeal as they existed at the time
of the initial decision and the appellant’s arguments on review.
The appellant failed to show that the administrative judge erred, under the law in
effect at the time, in finding that the agency satisfied its burden to prove that the
appellant’s performance was unacceptable.
¶7 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 2 that: (1) the Office of Personnel Management
approved its performance appraisal system and any significant changes; (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(b)(1) (2012) 3; (4) the agency warned the appellant of the
2
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). This is a
lower standard of proof than preponderance of the evidence. Id.
3
Effective December 12, 2017, the National Defense Authorization Act of 2018
recodified 5 U.S.C. § 4302(b) to 5 U.S.C. § 4302(c). Pub. L. No. 115-91, § 1097(d)(1),
131 Stat. 1283, 1619-20. Because this amendment post-dates the action at issue here,
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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 at least one critical element.
Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). The
agency may remove an employee for unsuccessful performance under chapter 43
after the successful completion of a PIP if: (1) the instances of unacceptable
performance are in the same critical element involved in the PIP; and (2) the
agency’s reliance for its action is limited to those instances of performance that
occur within 1 year of the advance notice of the PIP. Muff v. Department of
Commerce, 117 M.S.P.R. 291, ¶ 5 (2012); see 5 C.F.R. § 432.105(a)(1)-(3).
¶8 In his petition for review, the appellant does not challenge the
administrative judge’s findings that the agency met its burden of proving the first,
second, third, and fifth elements of a performance-based removal. PFR File,
Tab 1; ID at 5, 8-10. Based on our review of the record, we find no reason to
disturb those findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶9 The appellant instead disputes the administrative judge’s finding that the
agency gave him a reasonable opportunity to demonstrate acceptable
performance. PFR File, Tab 1 at 5-6; ID at 13. Specifically, he argues that his
production was lowered because his supervisor unduly delayed approving his
office actions by returning them to him multiple times for revisions. PFR File,
Tab 1 at 5-6. To support his argument, he cites to Greer v. Department of the
Army, 79 M.S.P.R. 477 (1998). Id. He also references the “Quality Major
Activities” that are listed in his performance appraisal plan and are relevant to
we refer to the earlier codification. Harris v. Securities & Exchange Commission,
972 F.3d 1307, 1311 n.1 (Fed. Cir. 2020).
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rating the critical element of quality, and a detailed comparison of two of his
office actions. Id.
¶10 For the following reasons, we find that the appellant has failed to provide a
reason to disturb the initial decision’s findings regarding the opportunity to
improve. In Greer, 79 M.S.P.R. at 487, the Board affirmed the appellant’s
performance-based removal. In finding that the agency proved that the
appellant’s performance was unacceptable, the Board considered an agency
official’s testimony on the shortcomings of the employee’s work product and
compared such work product with the agency’s examples of satisfactory work.
Id. at 485. The Board found it appropriate to defer to the agency’s judgment
regarding the adequacy of the appellant’s performance as a research scientist. Id.
¶11 Here, the appellant claims that, in contrast to the Board’s analysis in Greer,
the administrative judge failed to consider his evidence allegedly showing the
adequacy of his office actions and that revisions were unnecessary. PFR File,
Tab 1 at 5-6. We find that the administrative judge acted consistently with Greer
by relying on the agency’s evidence demonstrating that the appellant’s
performance was deficient. ID at 9-10, 12-13; see Fernand v. Department of the
Treasury, 100 M.S.P.R. 259, ¶ 8 (2005) (explaining that, under the substantial
evidence standard, the agency is not required to provide evidence regarding the
appellant’s performance that is more persuasive than that presented by the
appellant), aff’d, 210 F. App’x 992 (Fed. Cir. 2006) (Table). The administrative
judge also addressed the appellant’s submission comparing two of his actions, but
found it without merit. ID at 10. To the extent the administrative judge did not
discuss the appellant’s submission in depth, it does not mean that he did not
consider it. Marques v. Department of Health & Human Services, 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, as in
Greer, we find it appropriate to defer to the agency’s determination that revisions
to the appellant’s office actions were necessary before they were approved by his
supervisor. IAF, Tab 4 at 51-70. Thus, even assuming that the quality
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component lowered the appellant’s production, we need not determine whether
his office actions satisfied the “Quality Major Activities” contained in his
performance appraisal plan.
¶12 Importantly, the appellant does not dispute that he received an
approximately 3-month PIP and an approximately 3-month period of evaluation
during the 1-year maintenance period, and assistance and feedback from his
supervisor during these periods. 5 C.F.R. § 432.104; ID at 11-13; see Lee,
115 M.S.P.R. 533, ¶ 33 (finding that a 60-day PIP can satisfy an agency’s
obligation to provide an employee with a reasonable opportunity to demonstrate
acceptable performance). Although the appellant successfully improved his
production during the PIP, it is undisputed that his production was unacceptable
within 1 year of the beginning of the PIP. ID at 12-13. Therefore, we agree with
the administrative judge’s finding that the agency proved that it afforded the
appellant a reasonable opportunity to improve his performance before removing
him for unacceptable performance during the first maintenance period instituted
following the successful completion of the PIP. ID at 13-14; see 5 C.F.R.
§ 432.105(a)(1)-(3); see, e.g., White v. Department of Veterans Affairs,
120 M.S.P.R. 405, ¶¶ 6-7 (2013) (finding that the agency provided the appellant
with a reasonable opportunity to improve performance before proposing a
reduction-in-grade action for his unacceptable performance following his
successful completion of a PIP by complying with 5 C.F.R. § 432.105(a)(1)-(3)).
¶13 Next, the appellant disputes the administrative judge’s denial of his motion
to supplement the summary of the close of record conference. PFR File, Tab 1
at 5. In requesting to supplement the summary, the appellant stated,
“Administrative Judge acknowledged that denying the Appellant an opportunity
to perform is a viable consideration to meet the grievances of the Appellant.
Appellant presented a path to proving the opportunity to improve performance
was denied via analysis of the submitted work product.” IAF, Tab 11 at 5. The
administrative judge denied the motion because the Board lacks the “expertise
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[and] the authority to evaluate whether patent applications m eet the standards for
granting a patent.” ID at 2 n.2; IAF, Tab 10 at 2. We find that the administrative
judge properly denied the appellant’s motion and limited the appeal to the
relevant issue of whether the agency satisfied its burden of proving the e lements
of a performance-based removal under chapter 43. IAF, Tab 10 at 1-2.
¶14 Finally, the appellant contests the administrative judge’s denial of his
motion to compel discovery. PFR File, Tab 1 at 6. The Board will not reverse an
administrative judge’s rulings on discovery matters, including a motion to
compel, absent an abuse of discretion. Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 42 (2014). Here, the administrative judge denied the
appellant’s motion because he already had denied it as irrelevant during the close
of record conference and had determined that the appellant should have made the
motion during the discovery period. ID at 2 n.2; IAF, Tab 10 at 2. The appellant
has not shown error in the administrative judge’s findings, and therefore, we find
that he has failed to show an abuse of discretion in the denial of discovery.
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
¶15 As noted, during the pendency of the petition for review in this case, the
Federal Circuit issued Santos, 990 F.3d at 1360-63, in which it held that, in
addition to the five elements of the agency’s case, as set forth above, the agency
must also justify the initiation 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 case already contains evidence
suggesting that the appellant’s performance prior to the initiation of the PIP was
unacceptable, IAF, Tab 5 at 49-50, we remand the appeal to give the parties the
opportunity to present argument and additional evidence on whether the
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appellant’s performance during the period leading up to the PIP was unacceptable
in one or more critical elements. 4 See Lee, 2022 MSPB 11, ¶¶ 15-17.
¶16 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, the administrative judge may incorporate in the remand initial
decision his prior findings on the other elements of the agency’s case.
ORDER
¶17 For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication consistent with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
4
The agency’s obligation under Santos is unaffected by the fact that the appellant
successfully improved his performance during the PIP, given that he suffered a
subsequent lapse in performance within the 1-year period following the initiation of the
PIP, resulting in his removal.