The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCHELLE EDWINA GREENE, DOCKET NUMBER
Appellant, DC-0432-15-0708-I-1
v.
DEPARTMENT OF VETERANS DATE: August 30, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Rochelle Edwina Greene, Forestville, Maryland, pro se.
Xan DeMarinis, Esquire, Washington, D.C., 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
sustained her removal for unacceptable performance under 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 the case to the Washington Regional
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Office for further adjudication in accordance with this Remand Order and
Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir.
2021).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective April 13, 2015, the agency removed the appellant from her
GS-0996-11 Veterans Service Representative (Rating) position based on her
unacceptable performance in one critical element of her performance standards.
Initial Appeal File (IAF), Tab 5 at 19, 21-23, 32-33. 2 The appellant appealed,
and, after she withdrew her request for a hearing, IAF, Tab 15, the administrative
judge issued a decision based on the written record in which he found that the
agency proved its action by substantial evidence and the appellant failed to prove
her affirmative defenses, IAF, Tab 25, Initial Decision (ID) at 5 -20. The
appellant petitions for review.
¶3 At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance-based removal appeal under chapter 43, the agency
must establish by substantial evidence that: (1) the agency communicated to the
appellant the performance standards and critical elements of her position; (2) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (3) the
agency warned the appellant of her performance inadequacies during the appraisal
period and gave her an adequate opportunity to improve; and (4) after an adequate
improvement period, the appellant’s performance remained unacceptable in at
least one critical element. 3 Towne v. Department of the Air Force, 120 M.S.P.R.
2
As a Veterans Service Representative (Rating), the appellant was responsible for
assigning disability levels for disability claims filed by veterans. IAF, Tab 21 at 11.
3
The agency also has the burden of proving that the Office of Personnel Management
has approved the agency’s performance appraisal system and any significant changes
thereto, if the appellant specifically raises such a challenge. Daigle v. Department of
Veterans Affairs, 84 M.S.P.R. 625, ¶¶ 11-12 (1999). The agency has submitted
documentation, which the appellant does not challenge, sufficient to meet this bu rden.
ID at 4 n.3; IAF, Tab 14 at 12, 14, 16.
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239, ¶ 6 (2013); 4 Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5
(2010). 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). Substantial evidence is a lesser standard of proof than
preponderance of the evidence and, to meet this standard, the agency’s evidence
need not be more persuasive than that of the appellant. See Mahaffey v.
Department of Agriculture, 105 M.S.P.R. 347, ¶ 7 (2007).
¶4 As addressed below, we discern no basis to disturb the administrative
judge’s findings in the initial decision. As discussed at the end of our analysis,
this appeal must nevertheless be remanded to address an additional element of the
agency’s burden of proof as set forth in Santos v. National Aeronautics & Space
Administration. 990 F.3d at 1360-61.
The appellant’s performance standards are valid, and the agency properly
communicated them to her at the beginning of the performance appraisal period.
¶5 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria. 5 U.S.C.
§ 4302(c)(1); Guillebeau v. Department of the Navy, 362 F.3d 1329, 1335-36
(Fed. Cir. 2004). Standards must be reasonable, realistic, attainable, and clearly
stated in writing. Thomas v. Department of Defense, 95 M.S.P.R. 123, ¶ 12
(2003), aff’d, 117 F. App’x 722 (Fed. Cir. 2004); Greer v. Department of the
Army, 79 M.S.P.R. 477, 483 (1998). Performance standards should be specific
enough to provide an employee with a firm benchmark toward which to aim her
performance, Greer, 79 M.S.P.R. at 483, and must be sufficiently precise so as to
invoke general consensus as to their meaning and content, Henderson v. National
4
Although Towne provides that performance standards must be valid under
5 U.S.C. § 4302(b)(1), the National Defense Authorization Act of 2018 redesignated
subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, 5 U.S.C. § 4302(c)(1) now sets forth the
statutory requirements for a valid performance standard.
4
Aeronautics & Space Administration, 116 M.S.P.R. 96, ¶ 20 (2011). Performance
standards are not valid if they do not set forth the minimum level of performance
that an employee must achieve to avoid removal for unacceptable performance
under chapter 43. Id.
¶6 The administrative judge found, and the parties do not dispute, that the
agency communicated the appellant’s performance standards to her on several
occasions. ID at 9. The standards set forth in the appellant’s Performance
Improvement Plan (PIP) were the same standards contained in her position
description of record. Compare IAF, Tab 5 at 65-66, with IAF, Tab 14 at 31. The
agency used a three-tiered rating system in which the possible ratings were
“exceptional,” “fully successful,” and “unacceptable,” and the standards identify
the level of performance the appellant had to achieve to reach the “fully
successful” level. IAF, Tab 5 at 65-66; see Sherrell v. Department of the Air
Force, 47 M.S.P.R. 534, 539 (1991) (finding that performance standards must be
written at the “Fully Successful” level for all critical and noncritical elements and
may be written at other levels), aff’d, 956 F.2d 1174 (Fed. Cir. 1992) (Table).
We find that the agency properly communicated the relevant standard to the
appellant.
¶7 We also find that the standard was valid. More specifically, the critical
element at issue in this appeal is number 3, “Output.” Under critical element 3 ,
the standard provided that employees were required to produce a particular
amount of average cumulative output, measured by a formula that takes into
account the complexity of the assignment and the experience of the employee,
with more experienced employees expected to produce at a higher avera ge rate.
IAF, Tab 5 at 66. Because the appellant had been in her position for more than
2 years, id. at 97, she had to produce 3.25 weighted actions per day to achieve the
“Fully Successful” level of performance.
¶8 The appellant does not challenge the validity of her performance standard,
and we find, as did the administrative judge, that the standard is precise, specific,
5
and objective and clearly put the appellant on notice of what she was required to
do to achieve “Fully Successful” performance. ID at 8-9; see Jackson v.
Department of Veterans Affairs, 97 M.S.P.R. 13, ¶¶ 12-14 (2004) (emphasizing
that the Board’s focus under 5 U.S.C. § 4302(c)(1) is on accurately measuring
performance based on objective criteria). Thus, we agree with the administrative
judge that the agency has met its burden of proving by substantial evidence that
the appellant’s performance standards are valid and were properly communicated
to her.
The agency afforded the appellant a reasonable opportunity to demonstrate
acceptable performance.
¶9 Before initiating an action for unacceptable performance under 5 U.S.C.
§ 4303, an agency must give the employee a reasonable opportunity to
demonstrate acceptable performance. Greer, 79 M.S.P.R. at 480. The agency is
required by regulation to offer the appellant assistance in improving her
performance as part of her opportunity to demonstrate acceptable performance.
Goodwin v. Department of the Air Force, 75 M.S.P.R. 204, 208 (1997); 5 C.F.R.
§ 432.104. However, there is no mechanical requirement regarding the form this
assistance must take. Gjersvold v. Department of the Treasury, 68 M.S.P.R. 331,
336 (1995). The employee’s right to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Lee,
115 M.S.P.R. 533, ¶ 32. In determining whether the agency has afforded the
appellant a reasonable opportunity to demonstrate acceptable performance,
relevant factors include the nature of the duties and responsibilities of the
appellant’s position, the performance deficiencies involved, and the amount of
time that is sufficient to enable the employee to demonstrate acceptable
performance. Id.; Satlin v. Department of Veterans Affairs, 60 M.S.P.R. 218, 225
(1993) (determining that the administrative judge properly considered the
appellant’s length of service and experience in concluding that the appellant had
6
received both adequate instruction and time in which to demonstrate
improvement).
¶10 Here, the record shows that the appellant was afforded 90 days to improve
her performance. IAF, Tab 5 at 70. The agency stated in the PIP that it would
meet with the appellant biweekly to discuss her performance, address any areas of
concern, and answer her questions. Id. at 69. The agency followed through on its
promises. During the opportunity to improve, it documented seven meetings held
between the appellant and her supervisor to discuss the appellant’s performance
and submitted monthly performance notices containing her production numbers.
Id. at 42, 53-54, 59-60. We agree with the administrative judge that the agency
established by substantial evidence that it afforded the appellant a reasonable
opportunity to demonstrate acceptable performance. Towne, 120 M.S.P.R. 239,
¶ 20 (finding that the agency met its burden of showing that it provided the
appellant with a reasonable opportunity to demonstrate acceptable performance
by holding regular meetings with her during the opportunity to improve and
giving her written feedback).
The appellant’s performance was unacceptable in one critical element of her
performance standards.
¶11 An agency’s burden of providing substantial evidence of an appellant’s
unacceptable performance can be met largely by the submission of documentation
through the charges and the appellant’s working papers. Fernand v. Department
of the Treasury, 100 M.S.P.R. 259, ¶ 10 (2005), aff’d, 210 F. App’x 992 (Fed.
Cir. 2006). A proposal notice can constitute valid proof of an agency’s charges
when the notice is not merely conclusory but sets forth in detail an employee’s
errors and deficiencies and when the notice is corroborated by other evidence. Id.
¶12 Here, the agency provided substantial evidence showing that the appellant
produced a cumulative average production rate of 2.95 weighted actions per day.
IAF, Tab 5 at 32. To successfully complete the PIP, the appellant had to achieve
3.25 weighted actions per day. Id. at 32, 65. The appellant conceded that her
7
output was not at the acceptable level. IAF, Tab 19 at 4. We find, therefore, that
the agency proved by substantial evidence that the appellant’s performance was
unsuccessful at the conclusion of the PIP.
The appellant failed to prove her affirmative defenses.
¶13 The appellant contended that the agency discriminated against her when it
failed to accommodate her disability. The appellant had abdominal surgery in
May 2014, but was cleared by her physician to return to duty on July 7, 2015,
with restrictions on heavy lifting, low seating, bending/lifting/pushing/pulling,
and excessive standing or walking. IAF, Tab 17 at 35, Tab 19 at 3. When she
returned from surgery, she used a walker to get around. However, there is no
evidence that her job, which appears to be sedentary, required her to perform any
of the physical actions prohibited by her physician. Moreover, the appellant did
not identify any accommodation of her limited mobility that would have helped
her achieve the required production rate.
¶14 The appellant contends for the first time on review that there were
workplace distractions during the PIP, such as training courses, noise, meetings,
broken equipment, new software, and frequent changes in the way her work
product was weighted, and she implies that these factors impeded her ability to
successfully complete the PIP. Petition for Review (PFR) File, Tab 1 at 11. The
Board generally will not consider an argument raised for the f irst 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). Although the appellant has not
made the required showing, we note in any event that she failed to substantiate
any of her claims and, in particular, she failed to substantiate the claim that there
were frequent changes in the way the agency weighted her work product. These
arguments do not persuade us that the initial decision should be disturbed.
¶15 The appellant further alleges for the first time on review that the agency
denied her request to adjust her workspace so she had better lighting and room to
8
store her walker. PFR File, Tab 1 at 14. She also alleges that the agency
relocated her cubicle so she had to travel a greater distance to the restroom. Id.
Again, however, the appellant has not substantiated her allegations or shown why
she could not have raised these issues below. We also fail to see why a larger
workspace, better than the usual lighting (she does not claim that the lighting was
inadequate or that the lighting over her workspace was dimmer than that of her
peers), and closer proximity to the restroom would have allowed her to raise her
rate of production to the “Fully Successful” level. We find, therefore, that these
arguments also provide no basis to disturb the initial decision.
¶16 Finally, the administrative judge found that the appellant failed to prove her
affirmative defense of race discrimination. ID at 18-20. The appellant challenges
this finding on review but concedes that she has no evidence to support her claim
because she filed untimely discovery requests that the agency was not bound to
answer. PFR File, Tab 1 at 16. As a result, we find no reason to question the
administrative judge’s finding on this issue. To the extent the appellant is
alleging improprieties in the agency’s handling of her request for inclusion in the
voluntary leave transfer program, PFR File, Tab 1 at 15-16, that matter is beyond
the Board’s purview. Cf. Fesler v. Department of the Interior, 52 M.S.P.R. 660,
663 (1992) (finding that the Board generally lacks jurisdiction to restore sick
leave other than as part of the relief granted in an otherwise appealable action).
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.
¶17 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
9
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 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 argument and evidence on this issue
and shall hold a supplemental hearing if appropriate. Id., ¶ 17.
¶18 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 his prior findings on the other elements of the agency’s
case and the appellant’s affirmative defenses in the remand initial decision. See
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 s, he 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).
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ORDER
¶19 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.