Opinion

Gregory Jacks v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Oct 5, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY G. JACKS, DOCKET NUMBER

Appellant, DA-0432-21-0018-I-1

SOCIAL SECURITY DATE: October 5, 2022

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph D. Ybarra, Esquire, San Antonio, Texas, for the appellant.

Angeline S. Reese, Esquire, and Lisa K. Paquette, Esquire, Dallas, Texas,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained his chapter 43 performance-based removal. On petition for review, the

appellant argues that the administrative judge did not properly consider whether

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

his performance was unacceptable prior to his placement on the agency’s

equivalent to a performance improvement plan (PIP) and whether he was given a

reasonable opportunity to improve his performance. Petition for Review (PFR)

File, Tab 1 at 9-16. He also argues that the administrative judge did not properly

consider his claims of reprisal for filing an equal employment opportunity (EEO)

complaint and a grievance. Id. at 16-19. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application o f the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outc ome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to VACATE the administrative judge’s finding that the agency

proved by clear and convincing evidence that it would have taken the same action

absent the appellant’s protected activity, we AFFIRM the initial decision.

¶2 The administrative judge correctly found that the agency establish ed by

substantial evidence that (1) the Office of Personnel Management 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. Initial

Appeal File, Tab 47, Initial Decision (ID) at 9-23. She also correctly found that

the agency proved by substantial evidence that the appellant’s performance was

unacceptable prior to his placement on a PIP. ID at 13 -16 (citing Santos v.

National Aeronautics & Space Administration, 990 F.3d 1355, 1360-63 (Fed. Cir.

2021)). 2 The appellant’s arguments on review do not provide a basis to dist urb

these findings. PFR File, Tab 1.

¶3 We also agree with the administrative judge’s conclusion that the appellant

failed to establish his affirmative defenses of reprisal for filing an EEO

complaint, 3 a grievance, and making a protected disclosure, and also failed to

show status-based disability discrimination and harmful procedural error. ID

at 24-39. The appellant’s arguments on review, which are limited to his claims of

reprisal for filing an EEO complaint and a grievance, do not provide a basis to

disturb the initial decision. PFR File, Tab 1. Nonetheless, we more specifically

address the administrative judge’s discussion of the appellant’s whistleblower

reprisal affirmative defense to correct an error that does not affect the outcome of

the appeal.

¶4 Specifically, the administrative judge concluded that the appellant failed

prove that he engaged in protected activity that was a contributing factor in his

removal. ID at 33-34. Nonetheless, she proceeded to consider whether the

agency met its burden of showing by clear and convincing evidence that it would

have removed the appellant even in the absence of any protected activity. ID

While this case was pending on petition for review, the Board modified the standard

applicable to chapter 43 actions in light of Santos and applied that standard to all

pending cases. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶¶ 13-16.

Because the administrative judge correctly applied the Santos standard, remand under

Lee is not required.

Because we agree with the administrative judge’s finding that the appellant failed to

prove that his EEO complaint, which alleged age discrimination and harassment, was a

motivating factor in his removal, we need not reach the question of whether the EEO

complaint was a “but-for” cause of the removal. See Babb v. Wilkie, 140 S. Ct. 1168,

1177-78 (2020).

at 34-35 (citing Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir.

1999)). Because we agree with the administrative judge that the appellant failed

to establish a prima facie case of whistleblower reprisal, it was improper for the

administrative judge to then consider whether the agency met its burden to show

by clear and convincing evidence that it would have taken the same action in the

absence of the appellant’s protected activity. See 5 U.S.C. § 1221(e)(2).

Accordingly, we vacate the initial decision’s finding that the agency showed by

clear and convincing evidence that it would have removed the appellant even in

the absence of his protected activity.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failu re to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.