The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONRADO W. SKEPPLE, DOCKET NUMBER
Appellant, AT-0432-16-0320-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 18, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Erik De L’Etoile, Esquire, Tampa, Florida, for the appellant.
Mark Claytor, Fort Lee, 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 the agency’s action demoting him for unacceptable performance
pursuant to 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Atlanta Regional Office for further adjudication consistent with the U.S. Court of
Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics &
Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant filed a Board appeal from the agency’s decision to demote
him from the GS-1101-06 Commissary Contractor Monitor (Quality Assurance
Evaluator) (QAE) position to the WG-6914-04 Store Worker position for
unacceptable performance. Initial Appeal File (IAF), Tab 4 at 28 -31. The record
reflects that the QAE’s primary job duties included, among other responsibilitie s:
(1) various customer service duties, to include addressing questions and concerns
from both internal and external customers; (2) monitoring and reporting the
performance of the contractor who provided various services to the commissary;
(3) various administrative duties; and (4) maintaining a safe and secure work
environment at the commissary for patrons and employees. IAF, Tab 13 at 77-81.
The appellant’s performance plan for the rating period from July 1, 2014, through
June 30, 2015, contained four critical job elements (CJEs) and one noncritical job
element. Id. The appellant’s performance in each of the CJEs was rated on a
three-tier system, Exceeded, Met, or Did Not Meet. Id.
¶3 On June 7, 2015, the appellant received written notice that his per formance
was at an unacceptable level in three of the four CJEs of his performance plan,
CJE 1—Customer Care, CJE 3—Contract Monitoring, and CJE 5—Safety and
Security. IAF, Tab 13 at 8-12. The notice advised the appellant that he was
being placed on a 60-day performance improvement plan (PIP), during which
time his supervisor would monitor his performance and meet with him to review
his work and discuss his progress. Id. at 8-11. The appellant was advised that, if
his performance remained at an unacceptable level, appropriate action would be
taken to demote or remove him from Federal service. Id. Following the
conclusion of the PIP, the appellant was issued a notice of proposed demotion
3
charging him with unacceptable performance in CJEs 1, 3, and 5. IAF, Tab 4
at 48-51. The appellant provided an oral and a written response to the deciding
official (DO). Id. at 8. On January 11, 2016, the DO issued a decision letter
finding that the appellant demonstrated unacceptable performance in the three
CJEs, as charged, and he was notified that he was being demoted to Store Worker,
effective February 7, 2016. Id. at 28-31. The appellant then filed this appeal.
IAF, Tab 1.
¶4 In his initial decision, the administrative judge found that the agency
adequately communicated the appellant’s CJEs and performance standards to him
and that the standards are valid. IAF, Tab 40, Initial Decision (ID) at 6 -8.
Regarding adequate notice of unacceptable performance, the administrative judge
performed a Hillen 2 analysis on witness credibility and found the appellant’s
assertion that he was unaware that he had been placed on a PIP was inherently
improbable and was not credible. ID at 9-10. The administrative judge also
found that the agency provided the appellant with a meaningful opportunity to
improve. ID at 11-15. Regarding the appellant’s performance in CJE 1—
Customer Care, the administrative judge found that the appellant was on notice of
the agency’s expectations under CJE 1 and that the agency specifically counseled
him over responsiveness to internal customers, including managers and
coworkers, and being professional in his interactions with these individuals. ID
at 18. The administrative judge further found that the agency proved by
substantial evidence the three, separate incidents of unacceptable performance
2
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering factors such as the following: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
4
under CJE 1, i.e., two distinct instances of failing to respond to his supervisor’s
request for information about product display shelving that needed cleaning and
one incident of sending inappropriate emails to a coworker concerning selecting a
grocery department training course. ID at 16-24. Thus, the administrative judge
found that the agency proved the charge of unacceptable performance in CJE 1.
Id. Because unacceptable performance in one CJE is sufficient to sustain the
agency’s action, the administrative judge found it unnecessary to analyze whether
the appellant’s performance was unacceptable in CJE 3 and CJE 5. ID at 6.
Accordingly, the administrative judge affirmed the agency’s demotion action. ID
at 24.
¶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 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance-based action under 5 U.S.C. chapter 43, the agency
must establish the following by substantial evidence: 3 (1) the Office of Personnel
Management 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 were valid under 5 U.S.C. § 4302(c)(1); 4 (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 t he
3
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).
4
As a result of the enactment of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115-91, § 1097(d)(1), 131 Stat. 1283, 1619 (2017), the criteria that
were set forth in 5 U.S.C. § 4302(b)(1) at the time the initial decision was issued now
appear in 5 U.S.C. § 4302(c)(1).
5
critical elements for which he was provided an opportunity to demonstrate
acceptable performance. Lee v. Environmental Protection Agency, 115 M.S.P.R.
533, ¶ 5 (2010).
The appellant’s arguments do not provide a basis to disturb the initial decisio n’s
findings as to the three specifications of the unacceptable performance charge
under CJE 1.
¶7 The appellant argues that the initial decision contains erroneous findings of
material facts that would alter the outcome of the initial decision. PFR File,
Tab 1. Specifically, the appellant challenges the administrative judge’s
determination that he failed to respond as directed to two separate emails from his
direct supervisor. 5 Id. at 5-6. The appellant argues that the two emails in
question required a response from him only if he should find issues or concerns,
and because he found no issues, he was not required to respond. Id. The
appellant also asserts that he was never “warned or told that he must respond” to
the emails. Id. The appellant also argues that, because the emails required him to
respond only if he found issues, the agency failed to prove this specification
because it did not show that he found areas of concern and failed to bring those to
his supervisor’s attention. Id. at 7. Thus, the appellant contends that, because the
administrative judge’s findings are erroneous, his demotion was sustained based
on one email that was not intended to be unprofessional. Id.
¶8 However, after reviewing the record evidence, including the hearing record,
we find that the appellant is arguing for the first time on review that his
supervisor’s emails to him did not require a response. Because he has made no
showing that this argument is based on new and material evidence not previously
available despite his due diligence, we need not consider it. See Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d).
5
The appellant does not challenge the administrative judge’s findings that his
performance standards are valid and that he received adequate notice of unacceptable
performance. ID at 7-15. We see no reason to disturb those findings.
6
¶9 Nonetheless, the hearing testimony reflects that the appellant admitted that
he knew he was expected to respond to the emails but did not do so. IAF, Tab 40,
Hearing Compact Disc (testimony of the appellant). Additionally, the appellant
received a June 29, 2015 email, which instructed him to walk the aisles and check
the condition of the commissary shelves at the beginning of his next shift and to
notify his supervisor by email about the areas found to need the supervisor’s
attention. IAF, Tab 8 at 32-34. His supervisor’s hearing testimony and
counseling notes for July 7, 2015, show that the appellant specifically was
counseled regarding his failure to respond to the June 29, 2015 email. Id. at 31.
Furthermore, the record includes a July 13, 2015 email from his supervisor to an
agency Human Resource Specialist noting that that he had specifically discussed
this issue with the appellant. Id. at 32. Similarly, the testimony and the
counseling notes documenting the appellant’s July 27, 2015 meeting with his
supervisor also reflect that the appellant was counseled concerning his failure to
respond to his supervisor’s request for correspondence. Id. at 7. Thus, the record
supports the administrative judge’s finding that the appellant received the emails
from his supervisor, that he was warned of the requirement to respond to those
emails, and that he failed to do so.
¶10 As to the specification that the appellant sent an email that he contends was
not meant to be unprofessional, the June 6, 2015 memorandum notifying the
appellant of his placement on a PIP explicitly stated that he was required to
promote a positive image, and he was not to be rude, impolite, or unprofessional
to any customer, coworker, manager, or authorized patron . IAF, Tab 13 at 8-9.
He also was advised that he was expected to communicate professionally with his
coworkers. Id. The administrative judge thoroughly discussed the language used
by the appellant in the two emails he sent to a coworker, in which he called
another coworker a “clown,” used symbols to represent profanity, referred to
several coworkers as “dirty people,” and accused his supervisor of “trying to
undermine” the grocery school training selection process. ID at 20 -22. We agree
7
with the administrative judge that the language the appellant used in the emails
was “unprofessional and highly inconsistent” with CJE 1, requiring the appellant
to promote a positive agency image and improve customer relations. IAF, Tab 13
at 77, Tab 5 at 16; ID at 21.
¶11 Finally, the appellant contends that the agency did not afford him a
reasonable opportunity to improve because the agency arguabl y demonstrated that
only one of the emails was unprofessional, and so, the administrative judge
should not have determined that the agency established that he failed to meet the
standards of CJE 1 based on this single unprofessional email. An opportunity to
demonstrate improved performance is a substantive right afforded an employee
under chapter 43 of title 5. Martin v. Federal Aviation Administration, 795 F.2d
995, 997 (Fed. Cir. 1986). An agency may establish a prima facie case that it
afforded the appellant an opportunity to improve by documentary or testimonial
evidence showing that the appellant was offered such an opportunity, but he then
may challenge such evidence. Adorador v. Department of the Air Force,
38 M.S.P.R. 461, 464 (1988). The agency has the ultimate burden to prove that
the opportunity to improve was given. Id. First, as set forth above, we disagree
with the appellant’s claim that the agency demonstrated that he sent only one
unprofessional email during the 60-day PIP. Second, the agency counseled the
appellant about what he needed to do to improve his communic ations and told
him how he was falling short during the PIP. Third, the appellant’s supervisor
provided the appellant with guidance and feedback during the PIP to try to assist
him in performing at what the agency considered an acceptable level. See
Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 623 (1984) (finding that
an employee who is not given adequate instructions regarding t he manner in
which he is expected to perform the duties of his position has not been provided
with an adequate opportunity to demonstrate acceptable performance). We
therefore find that the administrative judge correctly determined that the agency
afforded the appellant a reasonable opportunity to improve. Thus, we find that
8
the appellant has shown no basis upon which to disturb the administrative judge’s
findings and determinations regarding any of the three specifications of the
unacceptable performance charge under CJE 1.
Remand is required in light of Santos.
¶12 Although the administrative judge correctly applied the Board’s precedent
setting forth the relevant legal standard for chapter 43 actions at the time he
issued his initial decision, subsequent to the initial decision, the Federal Circuit
held for the first time that, to support such an action, an agency “must justify
institution” of a PIP by showing that the employee’s performance was
unacceptable prior to the same. Santos, 990 F.3d at 1360-61. Therefore, to
defend an action under chapter 43, an agency now also must prove by substantial
evidence that the appellant’s performance during the appraisal period prior to the
PIP was unacceptable in one or more critical elements. See Lee v. Department of
Veterans Affairs, 2022 MSPB 11, ¶¶ 15-17. The Federal Circuit’s decision in
Santos applies to all pending cases, including this one, regardless of when the
events took place. Id., ¶ 16. We therefore remand this case for further
adjudication of the appellant’s demotion. See Santos, 990 F.3d at 1363-64
(remanding the appeal for further proceedings under the modified legal standard);
see also Lee, 2022 MSPB 11, ¶ 16 (remanding the appellant’s chapter 43 appeal
because the parties were not informed of the modified standard set forth in
Santos).
¶13 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s
performance prior to the PIP was unacceptable. The administrative judge shall
hold a supplemental hearing if appropriate. The administrative judge shall then
issue a new initial decision consistent with Santos. 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
9
his placement on the PIP, the administrative judge may incorporate his prior
findings on other elements of the agency’s case in the remand initial decision.
ORDER
¶14 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.