The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLETTE MCCOMB, DOCKET NUMBER
Appellant, AT-0432-17-0265-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: July 26, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Joseph D. Ybarra, Esquire, San Antonio, Texas, for the appellant.
Marc Lerch, Biloxi, Mississippi, for the appellant.
James T. Hedgepeth, JBSA Randolph Air Force Base, Texas, 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 her removal. For the reasons discussed below, we GRANT the petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
for review, VACATE the initial decision, and REMAND the case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order
and Santos v. National Aeronautics & Space Administration, 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
¶2 The appellant held the Information Technology (IT) Specialist (Policy &
Planning) position with the agency at Keesler Air Force Base (AFB). Initial
Appeal File (IAF), Tab 5 at 15. Performance for the appellant’s position was
measured by four critical elements, and each element had corresponding
standards. Id. at 167-68. As is relevant here, element two, which comprises
30% of her entire performance plan, required the following:
Performs as plans and policy advisor to functional users of
information technology. Develops and interprets policy for
administering IT systems. Assesses policy needs and reviews,
revises, and develops policies to govern IT activities and presents
recommendations to higher-level management. Where necessary,
modifies established plans and policies in response to changes in
legislation or other directives. Through feasibility studies, assesses
impact of changes on current programs and recommends changes to
existing plans to ensure compliance. This includes long range
planning, and involves defining current and future business
requirements. Analyzes IT system development as it relates to the
organization and ensures policy and guidance are available for its
use, that necessary controls are in place, and systems operate as
intended and provide all necessary capabilities. Develops migration
plans for implementation of new technology. Assesses and identifies
training needs that address activities where gaps in competency exist
in other current or new technology. Develops training programs, or
locates and recommends sources of training that ensure users can
apply the best techniques in using IT. Provides technical ass istance
to system users and contractors. This includes keeping abreast of the
latest developments in technology and conducting feasibility studies
to evaluate systems performance as it relates to the organization.
Id. at 167. The standards that accompanied this element include the following:
(a) routinely maintains effective relationships with functional users; (b) with few
exceptions, accurately evaluates status of policy and reviews , revises, and
3
develops necessary policy; and (c) almost always provides effective technical
advice, assistance, and training to customers on changing technology. Id. at 168.
¶3 On April 29, 2016, the appellant was rated as not meeting elements two and
four of her position description. 2 Id. at 163. By letter dated May 19, 2016, the
appellant’s supervisor issued her a notice of unacceptable job performance and
improvement opportunity. Id. at 154-57. Under element two, the appellant was
found to be deficient in her contact with functional users, which the agency stated
was “limited” and that she “engaged only when directed.” Id. at 155. It also
found that the appellant’s technical advice to users was minimal and that she was
dependent upon others to produce information. Id. The agency further noted that
the appellant had “no intent to develop or use tools to assist in providing
functional users possible course[s] of actions.” Id. As a result, the appellant’s
supervisor placed her on a 60-day performance improvement plan (PIP) to
provide her an opportunity to raise her performance. Id. at 154-57.
¶4 The goals that the appellant was required to achieve to obtain a successful
rating for element two—as set forth in the PIP letter—are summarized below:
(1) engage functional users frequently, provide appropriate
responses, develop working relationships, track status on assigned
work orders; (2) ensure work is commensurate to pay grade and
utilizes [Air Force] guidance’s [sic] instructions and provided
tracking tools to complete task; (3) engage with assigned customers
and provide customer support, plans of action to include establishing
reasonable time lines to the customer; (4) ensure time lines are
provided to leadership with action plans and properly maintain status
of the initiatives assigned. Develop self-imposed timelines; (5)
formulate processes to ensure consistent results in documentation
and record keeping. Eliminate corrections/rework by first line
supervisor; and (6) develop a lessons learned, best practices
document in order to respond to users. Utilize the work center
2
The administrative judge only addressed element two because he found that the
agency proved inadequate performance on that element and that it was, therefore,
unnecessary to analyze element four. IAF, Tab 31, Initial Dec ision (ID) at 3 n.1.
Because we agree with that ultimate conclusion, we also decline to analyze element
four.
4
templates provided in accomplishing task/suspense’s [sic] and
coordination.
Id. at 155. The letter also informed the appellant that, to the extent possible,
feedback will be provided a minimum of once a week during the improvement
period and that, if her performance was still rated unacceptable at the end of the
PIP period, appropriate action, such as removal from Federal service, may be
considered. Id. at 156.
¶5 Several months after the PIP’s conclusion, the appellant’s supervisor
determined that her performance continued to be unacceptable, and on
December 6, 2016, he issued the appellant a notice of proposed removal for
unacceptable performance in the two elements noted as deficient in the PIP.
Id. at 28-33. Following the appellant’s reply to the notice, id. at 23-26, the
agency issued a decision letter imposing her removal, effective January 12, 2017,
id. at 20-21.
¶6 The appellant filed this appeal challenging the removal and raising
affirmative defenses of equal employment opportunity (EEO) retaliation and
discrimination on the bases of race and color. IAF, Tab 1 at 6, Tab 18 at 5. The
administrative judge held a hearing, IAF, Tab 26, and issued an initial decision
affirming the agency’s removal action and denying the appellant’s affirmative
defenses, IAF, Tab 31, Initial Decision (ID). The administrative judge found that
the agency proved all of the elements for taking a performance -based action under
5 U.S.C. chapter 43. ID at 5-13. He further found that the appellant failed to
establish by preponderant evidence that the removal action was taken in
retaliation for her EEO activity or the result of discrimination based on race or
color. ID at 13-18.
¶7 The appellant has filed a petition for review, arguing that the administrative
judge erred in finding that the agency proved all of the elements required to
5
support a chapter 43 action. Petition for Review (PFR) File, Tab 1 at 8 -18. 3 The
agency has filed a response in opposition. 4 PFR File, Tab 3.
ANALYSIS
¶8 As noted above, consistent with the U.S. Court of Appeals for the Federal
Circuit’s decision in Santos, 990 F.3d at 1360-63, we are remanding this appeal
for further adjudication. In Santos, the court held for the first time that, in
addition to the elements of a chapter 43 case set forth by the administrati ve judge
and discussed below, an agency also must show that the initiation of a PIP was
justified by the appellant’s unacceptable performance before the PIP. Id. Prior to
addressing the remand, however, we address the administrative judge’s findings
on the elements of a chapter 43 appeal, as they existed at the time of the initial
decision, and the appellant’s arguments on review.
The agency proved the basis for a chapter 43 performance-based removal under
pre-Santos law.
¶9 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 5 that: (1) OPM approved its performance
3
The appellant’s petition for review appears to have been untimely filed. PFR File,
Tab 1 at 3. However, as noted in the Clerk of the Board’s acknowledgment letter,
because the petition was filed in a timely manner from the Central Time Zone, as
opposed to the Eastern Time Zone as designated by the e-Appeal Online system, see
5 C.F.R. § 1201.14(m)(1), it was timely filed. PFR File, Tab 2.
4
The appellant does not appear to challenge on review the administrative judge’s
finding regarding her affirmative defenses. We have reviewed the record, and we
discern no error with those findings. In light of the administrative judge’s uncontested
finding that the appellant did not prove her race, color, or EEO activity were a
motivating factor in the agency’s removal decision, ID at 13-18, we do not reach the
question of whether discrimination or reprisal was a “but for” cause of the removal
action. See Babb v. Wilkie, 589 U.S. ___, 140 S. Ct. 1168, 1177-78 (2020).
5
The agency’s burden of proof in an action taken under chapter 43 is “su bstantial
evidence,” defined as 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). This is a
lower burden than preponderant evidence.
6
appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position at the beginning of the appraisal period; (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 her performance during the appraisal
period 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. See Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 5 (2010).
¶10 On review, the appellant argues that the agency failed to meet its burden to
prove by substantial evidence that the agency communicated to her the
performance standards and critical elements of her position, that the performance
standards were valid, that the agency provided her with a reasonable opportunity
to improve, and that she remained deficient in at least one critical element. PFR
File, Tab 1 at 8-14. She also argued on review that the administrative judge
improperly relied solely on her supervisor’s testimony to prove unacceptable
performance. 6 Id. at 16. As explained below, the appellant’s arguments do not
provide a basis to disturb the administrative judge’s findings.
The agency proved that it communicated the performance standards and
critical elements of the appellant’s job description to her.
¶11 In the initial decision, the administrative judge found it undisputed that the
appellant received her performance plan, which identified the critical elements at
issue, prior to her placement on the PIP. ID at 6. On review, the appellant
vaguely alleges that the agency failed to communicate the performance standards
6
The appellant does not appear to challenge on review the administrative judge’s
finding that the agency proved OPM approved its performance appraisal system and any
significant change thereto. We have reviewed the record, and we discern no error in
that finding.
7
to her. PFR File, Tab 1 at 12-13. However, in an order and summary of a
telephonic prehearing conference, the administrative judge stated that, during the
teleconference, the appellant indicated that she was not challenging whether the
standards were properly communicated to her. IAF, Tab 13 at 2-3. Generally, the
Board will not consider an argument raised for the first 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). As to this claim, the appellant has not
asserted that it was based on new and material evidence nor has she made such a
showing. 7
The agency proved that the performance standards were valid.
¶12 Section 4302(c)(1) requires that performance standards, to the maximum
extent feasible, permit the accurate evaluation of job performance on the basis of
objective criteria related to the job in question. Lee, 115 M.S.P.R. 533, ¶ 29.
Standards must be reasonable, realistic, attainable, and clearly stated in writing.
Id. Provided these requirements are met, however, the Board will defer to
managerial discretion in determining what agency employees must do to perform
acceptably in their positions. Id. In the initial decision, the administrative judge
found that the standards outlined by the agency set forth a performance metric
that is measurable by frequency, task, and quality. ID at 7. The administrative
judge noted that the appellant did not dispute these standards, and he, therefore,
found that the agency proved by substantial evidence that the performance
standards are facially valid. ID at 7-8.
¶13 On review, the appellant argues that the agency failed to present any
evidence that the performance standards were valid and that the administrative
judge shifted the burden to the appellant to contest their validity. PFR File, Tab 1
7
Additionally, it appears that the appellant signed the performance standards
documentation, which certified receipt of the standards. IAF, Tab 5 at 166.
8
at 8-9. We disagree. As the administrative judge pointed out, the standards
provided to the Board use terms to define the frequency of performance, such as
“routinely,” “with few exceptions,” and “almost always.” IAF, Tab 5 at 167 -68;
ID at 7-8. Regarding the specific tasks to be performed, the standards require that
an employee “maintain effective relationships,” “accurately evaluate,” and
provide “effective technical advice, assistance and training.” Id. We find that
these standards set forth a minimum level of performance that an employee must
achieve to avoid removal for unacceptable performance. We further find that
these standards are reasonable, realistic, and attainable. Accordingly, we find
that the agency proved that the performance standards are valid. See Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶¶ 21-22 (2013).
¶14 Additionally, we find the appellant’s argument that the administrative judge
shifted the burden to her to prove the invalidity of the standards is withou t merit.
Rather, we find that the administrative judge merely noted that the appellant did
not provide any argument or evidence to detract from the agency’s evidence or
argument that the standards are valid. Accordingly, we agree with the
administrative judge that the agency proved this element by substantial evidence.
The agency proved that it provided the appellant with a reasonable
opportunity to improve.
¶15 In determining whether an agency has afforded an employee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee’s position, the
performance deficiencies involved, and the amount of time that is sufficient to
enable the employee to demonstrate acceptable performance. Lee, 115 M.S.P.R.
533, ¶ 32. Here, the administrative judge stated that the PIP lasted for 60 days
and that there was no reasoned basis to conclude that this period was inadequate
because the appellant had not challenged it. ID at 8. Based on that assessment,
the administrative judge found that the agency proved by substantial evidence
9
that it provided the appellant with a reasonable opportunity to improve.
ID at 8-9.
¶16 Although we agree with the administrative judge’s ultimate conclusion, we
find that his analysis is somewhat sparse and that it requires supplementing. To
support the conclusion that the duration of the appellant’s PIP was reasonable, we
note that the Board previously has found a 60-day PIP sufficient to satisfy the
agency’s obligation to provide the employee with a reasonable opportunity to
demonstrate acceptable performance. 8 Lee, 115 M.S.P.R. 533, ¶ 33. Further, the
appellant has argued, both below and again on review, that the agency did not
inform her of her specific performance deficiencies or what specifically she was
required to do to correct those deficiencies. PFR File, Tab 1 at 12 -13. However,
the record directly contradicts this contention, as the PIP letter explicitly
discusses the appellant’s deficiencies and provides bullet points of actions the
appellant could take to improve those deficiencies. IAF, Tab 5 at 154-57.
¶17 Regardless, even if the appellant genuinely believed that she wa s unaware
of her performance deficiencies or how the agency expected her to improve those
deficiencies, the record is clear that her supervisor attempted to meet with, and
did meet with, the appellant approximately two times per week to review her
understanding of the PIP and to discuss her progress. Hearing Compact Disc
(HCD) (testimony of the appellant’s supervisor); IAF, Tab 5 at 35-152. The
supervisor testified during the hearing that the appellant avoided these meetings,
refused to sign or acknowledge documentation produced as a result of the
meetings, and occasionally chose not to engage in the assistance he offered. Id.
His notes regarding these meetings are contained in the record and confirm these
8
On May 25, 2018, President Trump signed an Executive Order (EO) generally
requiring PIPs to be 30 days long. Exec. Order No. 13,839, 83 Fed. Reg. 25343,
25344-45 (May 25, 2018). On January 22, 2021, President Biden signed EO 14,003,
which, among other things, revoked EO 13,839. Exec. Order No. 14,003, 86 Fed. Reg.
7231 (Jan. 22, 2021). We find that these EOs have no effect on the outcome of this
case.
10
assertions. Id. Although the appellant argued to the contrary, claiming that she
never received any substantive assistance, HCD (testimony of the appellant); PFR
File, Tab 1 at 12-13, the administrative judge did not credit her testimony, and we
defer to that finding, ID at 11-13; see Haebe v. Department of Justice, 288 F.3d
1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at the hearing
and that the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so).
¶18 On the whole, the degree of assistance provided to the appellant was greater
than that which the Board has found sufficient to meet the agency’s obligation to
provide a reasonable opportunity to improve. See Goodwin v. Department of the
Air Force, 75 M.S.P.R. 204, 208-09 (1997) (finding that the agency afforded the
appellant a reasonable opportunity to improve by giving her a detailed PIP letter
and written feedback during the PIP and that her supervisor made herself
available to provide assistance but that the appellant did not request further
assistance). Therefore, we find that the agency proved by substantial evidence
that it provided the appellant with a reasonable opportunity to improve her
performance.
The agency proved that the appellant’s performance was deficient
following her completion of the PIP.
¶19 The appellant also argues that 5 U.S.C. § 4303 requires the agency to
include references to “specific instances of unacceptable performance by the
employee on which the proposed action is based” and that the agency failed to
provide any detailed references to specific deficiencies. PFR File, Tab 1
at 13-14. We disagree. Although the proposal notice discusses some of the
appellant’s performance deficiencies in a general fashion, IAF, Tab 5 at 28, it
goes on to include specific instances of deficiencies with the appellant’s
performance, id. at 30-31.
11
¶20 For example, the proposal notice discusses specific dates on which the
appellant required explicit direction from her supervisor for several of the tasks
outlined in the PIP. Id. In at least one of those instances, the appellant’s
supervisor emphasized to her that she still failed to show that she could
independently take on work without detailed assistance, which was an item
discussed in element two of her performance standards. Id. at 31. On another
occasion, the appellant’s supervisor reminded her that, pursuant to the goals set
forth in the PIP, she still did not appear to be self -imposing deadlines to provide
other staff with enough time to complete their own work. Id. Additionally, the
appellant’s supervisor testified that, despite the appellant being directed in the
PIP letter to “eliminate corrections/rework by first line supervisor,” he still
needed to verbally identify issues with the appellant’s work, print out speci fic
documents, and redline them to discuss the appellant’s errors with her.
HCD (testimony of the appellant’s supervisor). Accordingly, we find the agency
provided specific examples of the appellant’s performance issues and, therefore,
proved by substantial evidence that her performance remained inadequate in at
least one of the critical elements of her performance standards.
The administrative judge did not err in relying on the testimony of the
appellant’s supervisor.
¶21 The appellant also argues on review that the administrative judge
improperly relied solely on the testimony of her supervisor to find that the agency
proved her performance was unacceptable. PFR File, Tab 1 at 16 -18. The Board
has held that an administrative judge’s failure to mention all of the evidence of
record does not mean that he did not consider it in reaching his decision. See
Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, although the
appellant makes arguments on review that challenge her supervisor’s test imony,
she has not identified any particular evidence that the administrative judge may
have overlooked that might affect the outcome of this appeal. See Panter v.
12
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis to reverse an initial decision).
Remand is required under Santos.
¶22 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 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 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 Lee, 2022 MSPB
11, ¶¶ 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.
¶23 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 and the Board’s findings here on the
other elements of the agency’s case and the appellant’s affirmat ive defenses in
the remand initial decision. See id. Regardless of whether the agency meets its
13
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 defenses, 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 reasonin g, as
well as the authorities on which that reasoning rests).
ORDER
¶24 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.