recognizing that “some tasks may be rated only with a certain modicum of subjective judgment”
How later courts described this case
- recognizing that “some tasks may be rated only with a certain modicum of subjective judgment”
- concluding that a performance standard providing that reports must require “minimum revisions” was sufficiently objective and precise, despite allowing for some subjective judgment on the part of the appellant’s evaluators
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY S. HILL, DOCKET NUMBER
Appellant, AT-0432-16-0643-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 14, 2022
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam Jerome Conti, Esquire, Atlanta, Georgia, for the appellant.
Andrew Hass, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s action removing the appellant for unacceptable
performance. For the reasons discussed below, we GRANT the agency’s petition
for review, REVERSE the initial decision to the extent it held that the appellant’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
performance standards were invalid, and REMAND the case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order ,
including for the administrative judge to consider 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 served as a Supervisory Information Technology (IT)
Specialist with the agency’s Federal Emergency Management Agency. Initial
Appeal File (IAF), Tab 8 at 170. In January 2015, the agency is sued the appellant
a performance plan for the rating period of January 1 to December 31, 2015. Id.
at 93-129. In January 2016, the appellant’s supervisor provided the appellant
with his performance appraisal and rating for the 2015 rating period, in whic h he
rated the appellant’s performance as unacceptable in two of the seven core
competencies of his position: Core Competency 1: Communication; and Core
Competency 6: Assigning, Monitoring & Evaluating Work. Id. at 91. In
February 2016, the appellant’s supervisor issued the appellant a 60-day
performance improvement plan (PIP). Id. at 85-89. On May 3, 2016, the
appellant’s supervisor notified the appellant that he had failed to achieve an
acceptable level of performance, proposed the appellant’s remo val for
unacceptable performance in Core Competencies 1 and 6, and placed the
appellant in an administrative leave status. Id. at 44-46, 48, 50-83. The appellant
provided oral and written replies to the proposed removal, as well as a
supplemental written reply in response to additional information provided by the
deciding official. Id. at 28-29, 31, 33-42. The deciding official issued a decision
sustaining the proposed removal, effective July 11, 2016. Id. at 24-26.
3
¶3 The appellant timely filed a Board appeal in which he challenged the
removal and requested a hearing. 2 IAF, Tab 1. The appellant alleged that his
performance was not unsatisfactory, the PIP added new duties inconsistent with
the performance standards set forth in his performance plan, his performance
during the PIP was not rated in accordance with the performance standards in his
performance plan, the agency committed harmful procedural error during the
removal process, and the agency removed him because of his age, disabilities, and
protected equal employment opportunity (EEO) activity. Id. at 6. During the
prehearing conference, the appellant withdrew his affirmative defense of
disability discrimination. IAF, Tab 24 at 4.
¶4 Following a hearing, the administrative judge issued an initial decision
reversing the agency’s removal action. IAF, Tab 28, Initial Decision (ID). The
administrative judge found that the agency’s performance standards were not
valid because they did not notify the appellant of the level of performance
required to achieve acceptable performance and could be interpreted as absolute.
ID at 6-10. He also found that the agency failed to supplement the performance
standards, as the tasks set forth in the PIP failed to inform the appellant of the
level of performance he was required to achieve, and it was unreasonable that the
appellant’s failure to complete 1 of the 11 tasks in the PIP would result in
unacceptable performance. ID at 9-12. Thus, the administrative judge held that
the agency failed to establish that the appellant’s performance standards were
valid and reversed the removal action. ID at 12, 17. He also found that the
2
On July 1, 2016, the agency provided the appellant with a draft decision sustaining the
proposed removal and offered the appellant the opportunity to retire in lieu of removal
if he waived his appeal rights and dismissed his pending equal employment opportunity
complaint; 4 days later, the appellant declined the settlement offer and applied for
retirement. IAF, Tab 1 at 6, 9-10, 15-17; Hearing Transcript at 115-16 (testimony of
the deciding official). The appellant filed his appeal on July 7, 2016; however, the
agency did not issue the decision effecting his removal until July 11, 2016. IAF, Tab 1,
Tab 4, Tab 8 at 24-26. It is unclear whether the agency effected the appellant’s
retirement prior to the issuance of the decision; regardless, the appellant’s retirement
status has no effect on this appeal. See 5 U.S.C. § 7701(j).
4
appellant did not prove his affirmative defenses of retaliation on the basis of
protected EEO activity and discrimination on the basis of age and that he need not
address the appellant’s harmful procedural error and due process affirmative
defenses given his reversal of the removal action. ID at 12-17.
¶5 The agency has timely filed a petition for review of the initial decision, and
the appellant has filed a response in opposition to the agency’s petition. Petition
for Review (PFR) File, Tabs 1, 4. 3 As set forth below, we find that the
administrative judge erred in finding that the appellant’s performance standards
are not valid, and so we remand this matter for further adjudication of the merits
of the removal action.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 As discussed below, we are remanding this appeal for two reasons . First,
the administrative judge did not fully adjudicate the merits of the appeal or the
appellant’s affirmative defenses of harmful procedural error and due process
violations after finding that the agency failed to prove that its performance
standards were valid. We are vacating the administrative judge’s finding that the
performance standards were not valid. Thus, the remaining elements of a
performance-based action as set forth in Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 5 (2010), as well as the above-mentioned affirmative
defenses, must be adjudicated. Second, after the issuance of the initial decision,
the Federal Circuit issued its decision in Santos, 990 F.3d 1355. 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 and discussed below, an agency must also
show that the initiation of a PIP was justified by the appellant’s unacceptable
3
The administrative judge ordered the agency to provide the appellant with interim
relief should either party file a petition for review. ID at 19. On review, the agency
submitted an uncontested certification stating that it has complied with the interim
relief order. PFR File, Tab 2 at 4-5.
5
performance before the PIP. Id. at 1360-63. Thus, remand is necessary for the
administrative judge to address the additional requirement set forth in Santos.
¶7 Below, we first address the administrative judge’s findings on the elements
of a chapter 43 appeal as they existed at the time of the initial decision , which
includes our decision to reverse the administrative judge’s findings regarding the
validity of the agency’s performance standards and our remand instructions in
that regard. We then address the additional element to be considered on remand,
consistent with Santos. Finally, we briefly discuss the appellant’s affirmative
defenses of retaliation for protected EEO activity and discrimination on the basis
of age, wherein we discern no basis to disturb the administrative judge’s findings.
The administrative judge erred in finding that the appellant’s performance
standards were not valid.
¶8 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) 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
are 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 c ritical
elements for which he was provided an opportunity to demonstrate acceptable
performance. Lee, 115 M.S.P.R. 533, ¶ 5. 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).
¶9 The administrative judge’s findings that OPM approved the performance
appraisal system utilized by the agency in this matter and that the agency
6
communicated to the appellant the performance standards and critical elements of
his position are not in dispute, and we discern no reason to disturb these findings,
as the record reflects that the administrative judge considered the evidence as a
whole and drew appropriate inferences from the evidence submitted . ID at 5-6;
see Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (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
on the issue of credibility); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶10 On review, the agency argues that the administrative judge erred in finding
that the appellant’s performance standards are not valid because the appellant’s
performance standards include qualitative benchmarks, and the language of the
PIP sufficiently clarified the appellant’s performance standards and
communicated the minimum level of performance he was required to achieve.
PFR File, Tab 1 at 7-15; ID at 6-12. The appellant concedes that his performance
standards include valid benchmarks but argues that the supplemental measures set
forth in the PIP are unreasonable because they are unrelated to his performance
standards, unachievable, and do not inform him of the minimum level of
performance he was to achieve. PFR File, Tab 4 at 8-12.
¶11 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria related to the job in
question. 5 U.S.C. § 4302(c)(1); Towne v. Department of the Air Force,
120 M.S.P.R. 239, ¶ 21 (2013). Standards must be reasonable, realistic,
attainable, and clearly stated in writing. Towne, 120 M.S.P.R. 239, ¶ 21.
Performance standards should be specific enough to provide an employee with a
firm benchmark toward which to aim his performance and must be sufficiently
precise so as to invoke general consensus as to their meaning and content. Id.
Performance standards are not valid if they do not set forth the minimum level of
7
performance that an employee must achieve to avoid removal for unacceptable
performance under chapter 43. Id.
¶12 The administrative judge found that the appellant’s performance standards,
as set forth in Core Competencies 1 and 6, were not valid because they lacked
qualitative or quantitative benchmarks for “how well and how often” the
appellant had to meet the standards. ID at 8-9. The fact that performance
standards may call for a certain amount of subjective judgment on the part of the
appellant’s supervisor does not automatically render them invalid, especially
when, as here, the appellant’s position involves the type of professional judgment
that is not susceptible to a mechanical rating system. Neal v. Defense Logistics
Agency, 72 M.S.P.R. 158, 162 (1996); see Wilson v. Department of Health
& Human Services, 770 F.2d 1048, 1055-56 (Fed. Cir. 1985) (recognizing that
“some tasks may be rated only with a certain modicum of subjective judgment”).
Here, the appellant served as the Branch Chief of the regional IT division,
supervising approximately 14 employees, and both the technical and supervisory
nature of his work called for a degree of independence and discretion that
warranted less objectivity and specificity in his performance standards. Hearing
Transcript (HT) at 129-31 (testimony of the appellant); see Greer v. Department
of the Army, 79 M.S.P.R. 477, 483 (1998) (“[W]ith greater discretion and
independence reposed in the incumbent of a position comes less objectivity and
specificity in the position’s performance standards.”).
¶13 Contrary to the administrative judge’s findings, we find that any lack of
specificity in the appellant’s performance standards was cured when the agency
gave content to the performance standards by providing the appellant with
supplemental standards in the PIP and providing oral and written feedback during
the period in which the PIP was in effect. ID at 9-12. An agency may give
content to performance standards by informing the appellant of specific work
requirements through written instructions, information concerning deficiencies
and methods of improving performance, memoranda describing unacceptable
8
performance, and responses to the appellant’s questions concerning performance.
Romero v. Equal Employment Opportunity Commission, 55 M.S.P.R. 527, 535
(1992), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table). In particular, the PIP
informed the appellant of his performance deficiencies under each core
competency at issue and outlined seven “improvement actions” under Core
Competency 1 and four such actions under Core Competency 6 that he was to
complete during the period in which the PIP was in effect to perform at an
acceptable level. IAF, Tab 8 at 86-88.
¶14 The administrative judge found that the agency failed to set forth the
minimum level of performance that the appellant was required to meet because
the actions set forth in the PIP did not include performance measures and did not
inform the appellant of the minimum level of performance that he was required to
meet to achieve acceptable performance. ID at 9-12. To the contrary, we find
that each improvement action set forth in the PIP set forth sufficient benchmarks
toward which the appellant was to aim his performance. Each action identified a
communication or written product that the appellant was to complete during the
period in which the PIP was in effect. IAF, Tab 8 at 87-88. Each action further
identified required content for each communication or written product. Id.
Although the appellant disputed the validity of two actions under Core
Competency 1, which required him to submit a “completed” written product, we
find that this descriptor, coupled with his performance standard, which required
him to submit communications that “rarely require revisions,” was sufficie nt to
communicate to him the minimum level of quality his written products under
these actions were to achieve. Id. at 86-87; see also Wilson, 770 F.2d at 1055
(concluding that a performance standard providing that reports must require
“minimum revisions” was sufficiently objective and precise, despite allowing for
some subjective judgment on the part of the appellant’s evaluators). Each
improvement action also set forth either the frequency by which the appellant was
to complete a discrete action, such as “every two weeks” during the period in
9
which the PIP was in effect, or a firm deadline to complete such an action. IAF,
Tab 8 at 87-88. Thus, we find that the appellant’s performance standards, as
clarified by the improvement actions set forth in the PIP, were sufficiently precise
so as to invoke general consensus as to their meaning and content .
¶15 The administrative judge’s finding that the agency did not inform the
appellant that failure to complete 1 of the 11 actions set forth in the PIP would
result in unacceptable performance is unsupported by the language in the PIP
itself. ID at 9-10. The PIP informed the appellant that, by the end of the
designated performance improvement period, “your performance must improve to
a level of ‘Achieved Expectations’ in each element for which you are currently
rated as ‘Unacceptable’” and that failure to do so would resu lt in a
performance-based action, such as removal. IAF, Tab 8 at 86. Following a
description of the appellant’s performance standards at the “Achieved
Expectations” level, the appellant’s performance deficiencies, and “Improvement
Actions to Achieve Expectations” that the appellant was to complete, the PIP
informed the appellant that “All improvement actions required for ‘Achieved
Expectations’ in your unacceptable critical elements are listed above under the
heading ‘Improvement Actions to Achieve Expectations.’” Id. at 86-88. Thus,
we find that the language in the PIP was sufficiently clear to notify the appellant
that completing the 11 improvement actions set forth in the PIP was required to
demonstrate performance at the “Achieved Expectations,” or acceptable, level.
¶16 The administrative judge’s finding that the improvement actions were
merely a list of tasks that the appellant was req uired to perform in addition to his
normal duties, and were thus unreasonable, is unsupported by the record. ID
at 10-12. The 11 actions the appellant was to complete during the PIP “neither
materially changed the performance standard expected nor posed any additional
burdens on the appellant,” Anthony v. Department of the Army, 27 M.S.P.R. 271,
273 n.* (1985), aff’d, 795 F.2d 1011 (Fed. Cir. 1986) (Table), but rather fleshed
out the appellant’s overall performance objectives and constituted valid
10
clarifications that provided him a firm benchmark toward which to aim his
performance, Towne, 120 M.S.P.R. 239, ¶¶ 21-23. The record reflects that the
actions identified firm deadlines and specific content for projects for which the
appellant was responsible prior to the implementation of the PIP and for
communications required of the appellant in the normal course of his supervisory
and management duties as Branch Chief. IAF, Tab 8 at 86-88, 130-33; Tab 16
at 31-34; HT at 9-10, 12-18 (testimony of the acting IT division branch chief),
75-78 (testimony of the proposing official). It was well within the agency’s
discretion to establish deadlines and other requirements to give content to the
appellant’s performance standards. See Towne, 120 M.S.P.R. 239, ¶ 23
(concluding that standards set forth in the appellant’s PIP sufficiently fleshed out
a performance standard regarding timeliness); Chaggaris v. General Services
Administration, 49 M.S.P.R. 249, 254-55 (1991) (finding that the appellant’s
performance standards were valid when, among other things, he received a
document giving him clear written instructions for each project, the results
expected, due dates, and required follow-ups). Moreover, timely performance is
either directly or inherently required in the appellant’s performance standards.
Under Core Competency 6, the appellant’s performance standards required him to
“timely” monitor and evaluate team members’ performance, address performance
problems, address conduct issues, and provide feedback to unit members. IAF,
Tab 8 at 87. As to Core Competency 1, which required the appellant to prepare
“effective” communications, the appellant’s supervisor testified that the ability to
effectively communicate was related to the ability to timely communicate. HT
at 100 (testimony of the proposing official). Thus, we find the actions and time
limits set forth in the PIP to constitute valid clarifications of the appellant’s
performance standards.
¶17 Finally, the administrative judge’s finding that it was unreasonable that the
appellant’s failure to complete 1 of the 11 improvement actions would result in
unacceptable performance lacks explanation or evidentiary support. ID at 9-10.
11
An absolute performance standard is one under which a single incid ent of poor
performance will result in an unsatisfactory rating on a critical element.
Guillebeau v. Department of the Navy, 93 M.S.P.R. 379, ¶ 10 (2003), aff’d,
362 F.3d 1329 (Fed. Cir. 2004). Although agencies are not barred from
implementing absolute performance standards, performance standards must
nevertheless be “reasonable, based on objective criteria, and communicat ed to the
employee in advance.” Guillebeau, 362 F.3d at 1337. Thus, an agency is free to
set its performance standards as high as it deems appropriate, so long as those
standards are objective and meet the other express requirements of 5 U.S.C.
§ 4302(c)(1). Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, ¶ 14
(2004).
¶18 The agency has demonstrated by substantial evidence that the
11 improvement actions, standing alone or together, do not require an
unreasonably high level of performance by the appellant. None of the
improvement actions on their face require an unreasonably high level of
performance. IAF, Tab 8 at 87-88. The appellant did not explain why completing
the 11 actions was unattainable except to argue that some of the action deadlines
were too close together (but he did not offer support for this claim) and that he
could not perform the actions in addition to his regular duties and his duties
during the reorganization of his division. HT at 141-44, 148-49 (testimony of the
appellant). Although the appellant’s arguments regarding his ability to complete
all 11 actions during the PIP period due to his need to complete other work may
be relevant to the issue of whether he was provided with a reasonable opportunity
to improve his performance to an acceptable level during the PIP period , there is
no evidence that the 11 improvement actions themselves required an unreasonably
high level of performance. Compare Hober v. Department of the Army,
64 M.S.P.R. 129, 132 (1994) (holding that, when a performance standard required
the appellant to coordinate and compile an annual report by the “suspense date,”
and his actual ability to render acceptable performance under the standard was not
12
in dispute, the standard itself did not require an unreasonably high level of
performance), with Blain v. Veterans Administration, 36 M.S.P.R. 322, 324-25
(1988) (finding that a performance standard that required a file clerk to achieve a
99.91% accuracy rate in pulling and returning medical records from files was
unreasonable and thus invalid).
¶19 Accordingly, we find that the agency’s performance standards w ere not
impermissibly vague and reverse the administrative judge’s finding that the
performance standards were invalid. Upon finding that the performance standards
were invalid, the administrative judge did not further adjudicate the full merits of
the appeal as they existed at the time of the initial decision, nor did he reach the
issue of whether the appellant proved that the agency committed due process
violations or harmful procedural error. ID at 12, 16 -17. Further findings
regarding the merits and the appellant’s remaining affirmative defenses are best
made by the initial finder of fact; thus, we remand the case for further
adjudication of the agency’s removal action. See Neal, 72 M.S.P.R. at 163.
¶20 On remand, the administrative judge shall make findings, based on the
evidence already in the record, as to whether the agency established by
substantial evidence that 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 whether 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.
See Lee, 115 M.S.P.R. 533, ¶ 5. The administrative judge also shall make
findings, based on the evidence already in the record, as to whether the appellant
proved his affirmative defenses of due process violations and harmful procedural
error.
Remand is also required under Santos.
¶21 In addition to remanding the appeal for the administrative judge to consider
the remaining elements of a chapter 43 performance-based action, as set forth
13
above, we must also remand this appeal in accordance with Santos. As noted,
during the pendency of the petition for review in this case, 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 above, 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 decis ion 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. Thus, we remand
the appeal to give the parties the opportunity to present argument and additional
evidence 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 argu ment and evidence on this issue
and shall hold a supplemental hearing, limited to this issue, if appropriate. Id.,
¶ 17.
¶22 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 Core Competency 1 and/or
Core Competency 6 was at an unacceptable level prior to his placement on the
PIP, and if the administrative judge also finds that the agency proved all the other
elements as they existed pre-Santos, he may incorporate his prior findings
regarding OPM’s approval of the agency’s performance appraisal system and the
agency’s communication of the performance standards to the appellant in the
remand initial decision. He may also incorporate his prior findings on the
appellant’s affirmative defense of retaliation for protected EEO activity and
discrimination on the basis of age, as discussed below, in the remand initial
decision. 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 s, he should
address such argument or evidence in the remand initial decision. See Spithaler
14
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 inclu de the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The administrative judge properly found that the appellant did not prove his
affirmative defenses of retaliation for protected EEO activity and discrimination
on the basis of age.
¶23 On review, the appellant has not disputed the administrative judge’s
findings that neither retaliation for the appellant’s participation in protected EEO
activity, nor discrimination on the basis of age, was a motivating factor in the
agency’s decision to remove the appellant. ID at 13-16. In so finding, the
administrative judge applied the evidentiary standards set forth in Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015), clarified on
other grounds by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647,
¶¶ 30-31 (2016). ID at 13-14. In Savage, the Board stated that, when an
appellant asserts an affirmative defense of discrimination or retaliation, the Board
first will inquire whether the appellant has shown by preponderant evidence that
the prohibited consideration was a motivating factor in t he contested personnel
action. Savage, 122 M.S.P.R. 612, ¶ 51. The Board further stated that, in making
his initial showing, an appellant may rely on direct evidence or any of the three
types of circumstantial evidence described in Troupe v. May Department Stores
Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator or “convincing
mosaic,” either alone or in combination. Savage, 122 M.S.P.R. 612, ¶ 51.
¶24 The Board has since clarified that Savage does not require administrative
judges to separate “direct” from “indirect” evidence and to proceed as if such
evidence were subject to different legal standards, or to require appellants to
demonstrate a “convincing mosaic” of discrimination or retaliation. Gardner,
123 M.S.P.R. 647, ¶ 29 (quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760,
15
764 (7th Cir. 2016)). Instead, as the Board stated in Savage, the dispositive
inquiry is whether the appellant has shown by preponderant evidence that the
prohibited consideration was a motivating factor in the contested personnel
action. Gardner, 123 M.S.P.R. 647, ¶ 30; see Savage, 122 M.S.P.R. 612, ¶ 51.
Here, the administrative judge discussed the distinction between direct and
circumstantial evidence, but there is no indication that he disregarded any
evidence because it was not direct or circumstantial, and we conclude that he
properly considered the evidence as a whole in finding that the appellant failed to
prove by preponderant evidence that retaliation or discrimination was a
motivating factor in the removal action. ID at 13-16. As such, we discern no
basis upon which to disturb the administrative judge’s finding s denying the
appellant’s affirmative defenses of retaliation and discrimination . See Clay,
123 M.S.P.R. 245, ¶ 6.
¶25 Nevertheless, as explained above, we recognize that the additional evidence
and argument taken on remand in light of Santos could have an impact on the
appellant’s discrimination and retaliation claims. 4 Thus, if, upon receiving
evidence and argument on the issue of whether the appellant’s performance was
at an unacceptable level prior to his placement on the PIP, the administrative
judge is led to believe that discrimination or retaliation tainted the agency’s
decision to place the appellant on a PIP or now views other evidence in the
appellant’s discrimination and retaliation claims in a new light, he should explain
those findings in the new initial decision.
4
On August 29, 2022, the appellant filed a motion to reopen the record to submit an
August 9, 2022 decision from the Equal Employment Opportunity Commission (EEOC)
regarding the discrimination claim at issue in this appeal. PFR File, Tab 8 at 4 -5. In
his motion, he asserts that the EEOC’s decision “contains legal findings” regarding the
appellant’s performance rating prior to his placement on the PIP and the subsequent
placement on the PIP. Id. We need not rule on the appellant’s motion at this time.
However, because this document purports to concern the issue of pre -PIP performance
as discussed in Santos and which forms one of the bases of this remand, the
administrative judge should accept the EEOC decision into the record on remand and
give it the evidentiary weight he deems appropriate.
16
ORDER
¶26 For the reasons discussed above, we remand this case to the Atlanta
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.