The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KONSTANTINA TATSIS, DOCKET NUMBER
Appellant, CB-7121-16-0003-V-1
v.
DEPARTMENT OF HOUSING AND DATE: August 9, 2022
URBAN DEVELOPMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Rushab Sanghvi, Esquire, Washington, D.C., for the appellant.
Lawrence E. McDermott, Esquire, and Patricia McGarvey Knebels,
Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 Pursuant to the Board’s instructions in this arbitration review matter,
the administrative judge issued a September 25, 2017 recommended decision
finding that the appellant did not prove her affirmative defense of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
discrimination and that the agency proved its charge of unacceptable
performance. Tatsis v. Department of Housing & Urban Development, MSPB
Docket No. CB-7121-16-0003-H-1, Referral Proceeding File, Tab 104,
Recommended Decision (RD). For the reasons set forth below, we FORWARD
the case to the Northeastern Regional Office for further adjudication in
accordance with this Order and Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The agency removed the appellant, effective October 1, 2014, for failure to
demonstrate acceptable performance in a critical element of her p osition during a
90-day performance improvement plan (PIP) period. Tatsis v. Department of
Housing & Urban Development, MSPB Docket No. CB-7121-16-0003-V-1,
Request for Review (RFR) File, Tab 6 at 491-99, Tab 7 at 75-81. The appellant
filed a grievance challenging her removal, and thereafter her union invoked
arbitration. RFR File, Tab 6 at 24. Following a hearing, the arbitrator
denied the grievance, finding that the agency met its burden of proof in a
performance-based action under 5 U.S.C. chapter 43, that the appellant failed to
establish that the agency violated the applicable collective bargaining agreement,
and that the appellant failed to establish that she had requested a reasonable
accommodation. RFR File, Tab 6 at 22-33. The appellant filed a request for
review of the arbitration decision, in which she challenged, among other things,
the arbitrator’s failure to consider a reasonable accommodation request
she alleges was ignored by the agency, the arbitrator’s rulings regarding the
admissibility of certain evidence, and the arbitrator’s finding that the agency
afforded her a reasonable opportunity to improve her performance. Id. at 4-18.
The agency opposed the appellant’s request for review. RFR File, Tab 10.
¶3 In a June 16, 2016 Order, the Board held that the arbitrator erred
in analyzing the appellant’s affirmative defense of discrimination because:
3
(1) he discounted the appellant’s testimony that she requested a reasonable
accommodation during a January 2013 telephone conversation because it was not
corroborated by documentary evidence; (2) he failed to set forth a legal standard
or analytical framework for adjudicating the discrimination claim; (3) he failed
to consider whether the appellant was raising not only a cl aim of disability
discrimination on the basis of the agency’s failure to accommodate her disability
but also a claim of disparate treatment on the basis of sex under the Pregnancy
Discrimination Act (PDA); and (4) he failed to make findings regarding the
appellant’s claim that she had made a second request for accommodation in
September 2014. Tatsis v. Department of Housing & Urban Development,
MSPB Docket No. CB-7121-16-0003-V-1, Order, ¶¶ 11-16 (June 16, 2016). The
Board also concluded that the arbitrator erred in ruling that three emails between
the appellant’s supervisor and an employee relations specialist were protected by
the Freedom of Information Act’s deliberative process privilege and excluding
the emails from evidence. Id., ¶¶ 21-24. Finally, the Board determined that the
appellant’s other arguments did not provide a basis to reverse the arbitrator’s
findings, but the Board also concluded that it could not sustain the arbitrator’s
finding that the agency proved the charge of unacceptab le performance until the
evidentiary and discrimination analysis errors were addressed. Id., ¶¶ 28-29.
¶4 The Board vacated the arbitration decision, reversed the arbitrator’s
evidentiary ruling excluding the three emails, and forwarded the matter to the
Northeastern Regional Office for further adjudication of the appellant’s
discrimination claim and the merits of the charge of unacceptable performance.
Id., ¶¶ 1, 16, 24, 30-31. The Board directed the administrative judge to notify
the appellant of the elements and burdens of proof to establish her discrimination
claim, clarify whether the appellant was raising a claim of discrimination on the
basis of sex or disability, or both, and allow the parties to further develop the
record on the discrimination claim. Id., ¶¶ 17-18. The Board also ordered the
administrative judge to make credibility determinations regarding the appellant’s
4
testimony about the alleged January 2013 reasonable accommodation request,
analyze the effect of the PDA on the case, and make findings regarding the
appellant’s allegation that she made a second accommodation request in
September 2014. Id., ¶¶ 18-20. Next, the Board directed the administrative
judge to admit the three emails at issue into evidence and allow the parties to
further develop the record regarding the emails. Id., ¶ 24. The Board further
opined that the administrative judge could adopt the arbitrator’s findings
regarding the merits of the charge of unacceptable performance if he found that
the appellant failed to prove her affirmative defense of discrimination and the
findings were supported by the record, as supplemented by the three emails. Id.,
¶ 30.
¶5 Following a supplemental hearing, the administrative judge issued a
recommended decision finding that the appellant had failed to establish her
affirmative defense of discrimination and adopting the arbitrator’s findings
sustaining the agency’s removal for unacceptable performance. RD. The
administrative judge found that the appellant elected not to raise a claim of sex
discrimination on the basis of the PDA or any other theory. RD at 9. As to the
appellant’s claim of disability discrimination, the administrative judge found that
the appellant was an individual with a disability. RD at 10 -12. However, based
on his credibility assessment of the testimony of the appellant and other
witnesses, he deemed it implausible that the appellant had asked her supervisor
for an accommodation for her disability in January 2013, and, even if, as
she testified, she had spoken with her supervisor, her statements were
insufficient to place her supervisor on notice that she was requesting
an accommodation. RD at 12-15. In addition, the administrative judge
determined that there was some confusion as to whether the appellant and her
union representative asserted in their September 2014 responses to the proposed
removal that the appellant’s supervisor had failed to engage in the interactive
5
process 2 upon receiving the appellant’s alleged request for accommodation in
January 2013 or whether their responses requested that the reasonable
accommodation process begin anew. RD at 15-19. Nevertheless,
the administrative judge concluded that the deciding official reasonably
requested medical documentation to support the appellant’s assertions, but that
none was provided, and thus it seemed that the appellant had failed to continue
to engage in the interactive process. RD at 17-19. According to the
administrative judge, even if the agency had failed to engage in the interactive
process, it did not result in the failure to provide a reasonable accommodation,
as the record did not reflect that the appellant’s requests for ac commodation
were reasonable. RD at 19-20. In sum, the administrative judge found that the
appellant did not prove her affirmative defense of disability discrimination and
recommended rejecting the affirmative defense. RD at 19-20.
¶6 Regarding the merits of the removal action, the administrative judge stated
that, to sustain a performance-based removal, the agency must show by
substantial evidence that: (1) the Office of Personnel Management approved its
performance appraisal system; (2) the appellant’s performance standards and
critical elements of her position were communicated to her; (3) the appellant’s
performance standards were valid under the statute; (4) the agency warned the
appellant of the inadequacies of her performance during the appraisal pe riod and
gave her a reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant’s performance remained unacceptable in one or more of the
critical elements for which she was provided an opportunity to demonstrate
acceptable performance. RD at 5 (citing Towne v. Department of the Air Force,
2
The interactive process is the activity that happens between an employee and the
agency after the employee requests reasonable accommodation and is the process for
determining the nature of the accommodation. Brown v. Department of the Interior,
121 M.S.P.R. 205, ¶ 21 (2014); 29 C.F.R. part 1630 app. (“The appropriate reasonable
accommodation is best determined through a flexible, interactive process that involves
both the employer and the individual with a disability.”).
6
120 M.S.P.R. 239, ¶ 6 (2013), and Lee v. Environmental Protection Agency, 115
M.S.P.R. 533, ¶ 5 (2010)). The administrative judge did not find persuasive the
appellant’s allegation that she did not have a reasonable opportunity to
demonstrate acceptable performance during the performance improvement
period. RD at 20-21. The administrative judge found that the appellant’s
testimony on this issue was contradicted by the record and credible witness
testimony, and the three newly admitted emails did not show that her proposed
removal was predetermined. RD at 21-25. Accordingly, the administrative
judge found that the appellant had a reasonable opportunity to demonstrate
improved performance and recommended affirming the arbitrator’s decision.
RD at 25.
¶7 The administrative judge’s recommended decision informed the parties that
the recommended decision would be forwarded back to the Board and that the
parties could file exceptions to the recommended decision within 20 days of the
date of the recommended decision. RD at 26. Neither party filed exceptions to
the recommended decision.
ANALYSIS
With the exception of his recommendation that we affirm the arbitrator’s
decision, we adopt the administrative judge’s findings in the recommended
decision.
¶8 Absent exceptions to the administrative judge’s recommended decision, and
based on our review of the decision, with the exception of his ultimate
recommendation that we affirm the arbitrator’s decision—which we cannot
presently adopt for reasons stated below—we adopt the administrative judge’s
findings therein. Cf. Special Counsel v. Goewert, 64 M.S.P.R. 320, 321-22
(1994) (adopting an administrative law judge’s recommended decision in
an Office of Special Counsel disciplinary action case when no exceptions were
filed). As to the appellant’s affirmative defense of discrimination,
the administrative judge properly found that the appellant did not elect to raise a
7
claim of sex discrimination. RD at 9. In finding that the appellant did not prove
by preponderant evidence her claim of disability discrimination, the
administrative judge analyzed the appellant’s alleged requests for
accommodation in January 2013 and September 2014, made detailed credibility
findings, and considered the record evidence as a whole. RD at 9-20; see
Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶¶ 12-17 (2014)
(determining that the agency did not fail to provide a reasonable accommodation
because the appellant neither requested accommodation nor adequately provided
information concerning his ability to return to his position with
an accommodation); see also Clay v. Department of the Army, 123 M.S.P.R. 245,
¶ 6 (2016) (finding that the Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credi bility).
¶9 The administrative judge also properly analyzed the record evidence and
determined that the agency proved by substantial evidence that the agency
provided the appellant with a reasonable opportunity to demonstrate acceptable
performance and ultimately concluded that the agency proved its charge of
unacceptable performance. RD at 20-25; see Goodwin v. Department of the Air
Force, 75 M.S.P.R. 204, 206-09 (1997) (concluding that the agency afforded the
appellant a reasonable opportunity to demonstrate acceptable performance when
it provided the appellant with a detailed performance improvement plan and
abundant written feedback during the plan, and her supervisor made herself
available to provide assistance, but the appellant did not req uest assistance).
Accordingly, we discern no reason to disturb the administrative judge’s findings
and, pending the outcome of the additional proceedings discussed below, adopt
them as findings of the Board. See Clay, 123 M.S.P.R. 245, ¶ 6.
8
This matter must be forwarded to the administrative judge to afford the parties
an opportunity to submit evidence and argument regarding whether the appellant
performed unacceptably prior to her placement on a PIP.
¶10 Although the appellant has identified no basis for us to disturb th e
administrative judge’s findings in the recommended decision, we nonetheless
must forward this appeal to the administrative judge for another reason. During
the pendency of this case before the Board following the recommended decision ,
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in
Santos, 990 F.3d at 1360-61, that in addition to the five elements required to
sustain a performance-based removal set forth in the recommended decision, the
agency also must 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 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 forward 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., ¶¶ 16-17. In adjudicating
the forwarded appeal, the administrative judge shall accept argument and
evidence on this issue and shall hold a supplemental hearing if appropriate. Id.,
¶ 17. The administrative judge shall then issue a new recommended decision
consistent with Santos. Id. If the agency makes the additional showing required
under Santos, the administrative judge may incorporate his prior findings on
other elements of the agency’s case in the new recommended decision. Id.
Regardless of whether the agency meets its burden, if the argument or evidence
developed in the new proceeding regarding the appellant’s pre-PIP performance
affects the administrative judge’s findings on the other issues, he should address
9
such argument or evidence in the new recommended decision. Cf. 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).
ORDER
¶11 For the reasons discussed above, we forward this case to the Northeastern
Regional Office for further adjudication in accordance with this Order. After the
administrative judge issues the recommended decision, the case will be
forwarded back to the Board. The parties may file exceptions to the
administrative judge’s recommended decision with the Clerk of the Board within
20 days of the date of the recommended decision. The parties may respond to
any submission by the other party within 15 days of the date of such submission.
The Board will subsequently issue a final decision on the merits of the
appellant’s request for review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.