The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LENIAL M. BRITE, DOCKET NUMBER
Appellant, DC-0432-15-0940-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 7, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Norman Jackson, Esquire, Lincoln, New Hampshire, for the appellant.
Paul A. Raaf, Fort Bragg, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance pursuant to 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 consistent with Santos v. National Aeronautics and
Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 On August 27, 2012, the appellant joined the agency under a
career-conditional appointment as an Accountant, GS-0510-07. Initial Appeal
File (IAF), Tab 5 at 245. In that position, the appellant was expected to progress
from a GS-07 to a GS-11 over the course of 24 months. Id. at 119. After
successfully completing his first year in the position, the appellant was
noncompetitively promoted to the GS-09 level. IAF, Tab 39 at 48.
¶3 On August 25, 2014, the appellant was informed that, because he performed
unacceptably during two rotational assignments, he would not be promoted to the
GS-11 level. IAF, Tab 5 at 28-29. He also was informed, however, that he would
be afforded another opportunity to successfully complete his rotational
assignments. Id. On August 28, 2014, the appellant was placed on a 90-day
Performance Improvement Plan (PIP). Id. at 11-13.
¶4 On February 10, 2015, the appellant’s supervisor determined that the
appellant performed unacceptably during the PIP period in part because he did not
successfully complete the Audit Readiness rotation and because he did not
complete, or submitted incomplete, meeting minutes. Id. at 92-99. The agency
removed the appellant for unacceptable performance on June 9, 2015. IAF, Tab 4
at 19-20.
¶5 On appeal to the Board, the appellant alleged that he was wrongfully
removed and that the agency discriminated against him based on his race, age,
sex, and in reprisal for a prior complaint with the Equal Employment Opportunity
Commission. IAF, Tab 1 at 2. Although the appellant requested a hearing, the
administrative judge canceled the hearing as a sanction. IAF, Tab 33. She
provided the parties the opportunity to submit additional evidence and argum ent
before closing the record. IAF, Tab 34. On September 2, 2016, the
3
administrative judge issued an initial decision based on the written record,
finding that the agency proved its charge of unacceptable performance and that
the appellant failed to prove his claims of discrimination or retaliation. IAF,
Tab 42, Initial Decision (ID) at 6-24.
¶6 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the response. Petition for Review
(PFR) File, Tabs 1, 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 An agency may propose a reduction-in-grade or removal action based on an
employee’s unacceptable performance in a critical element if it affords him a
reasonable opportunity to demonstrate acceptable performance pursuant to
5 C.F.R. § 432.104 and his performance during or following that opportunity is
unacceptable in that critical element. 5 C.F.R. § 432.105(a)(1). The
administrative judge found that the agency proved by substantial evidence that
these conditions were satisfied here. ID at 17-18.
Remand is required in light of recent case law to make findings as to the
appellant’s performance prior to the implementation of the PIP.
¶8 On review, the appellant argues that his PIP did not meet the requirements
of 5 C.F.R. § 432.104 because, among other things, he was not told prior to the
PIP that his performance was unacceptable. PFR File, Tab 1 at 6. At the time the
initial decision was issued, the Board had held that an agency need not prove
unacceptable performance prior to the PIP. See Wright v. Department of Labor,
82 M.S.P.R. 186, ¶ 12 (1999); Brown v. Veterans Administration, 44 M.S.P.R.
635, 640-41 (1990). The administrative judge noted in the initial decision that to
prevail in a performance-based action under 5 U.S.C. § 4303, the agency was
required to prove the following by substantial evidence: (1) it took its action
under a performance appraisal system approved by the Office of Personnel
Management; (2) the agency had valid performance standards and those
4
standards, along with the critical elements of the appellant’s position, were
communicated to the appellant; (3) the appellant’s performance was found to be
unacceptable in one or more critical elements of his position ; and (4) the agency
afforded the appellant a reasonable opportunity to improve his performance. 2 ID
at 6.
¶9 However, during the pendency of the petition for review in this case, the
U.S. Court of Appeals for the Federal Circuit issued Santos, 990 F.3d at 1360-61,
which held that, in addition to the elements contained in ¶ 8 & n.3, 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. Accordingly, we remand the appeal to give the parties the
opportunity to present additional evidence as to whether the appellant’s
performance during the period leading up to the PIP was unacceptable in one or
more critical elements. See id. On remand, the administrative judge shall accept
argument and evidence on this issue, and shall hold a supplemental hearing
limited to this issue if requested. 3 Id., ¶ 17. 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 was at an unacceptable level prior to his placement on the PIP, and
2
In the initial decision, the administrative judge’s description of the agency’s burden is
worded differently than the standard set forth in other pre-Santos cases. For example,
the administrative judge did not expressly include a fifth element, i.e., that an agency
must show by substantial evidence that the employee’s performan ce remained
unacceptable in one or more critical elements. Compare ID at 6, with White v.
Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). Nevertheless, she
addressed this element in the initial decision. ID at 14-16.
3
As discussed infra ¶¶ 13-17, we find that the administrative judge did not abuse her
discretion in cancelling the hearing as a sanction for failure to comply with Board
orders. However, we clarify that, if requested, a hearing must be held on remand
regarding the appellant’s pre-PIP performance.
5
if the administrative judge also finds that the agency proved all the other elements
as they existed pre-Santos, she may incorporate her prior findings 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 defenses
or any other finding contained in the initial decision, she should address such
argument or evidence in the remand initial decision.
The agency demonstrated that it otherwise issued the PIP in accordance with
applicable law and regulations.
¶10 The appellant further argues that the agency violated 5 C.F.R. § 432.104
because (1) the PIP did not identify specific examples of his poor performance ;
(2) he was not informed of what, specifically, he would have to do to meet the
standards of his position; and (3) he was not offered any assistance to ove rcome
his deficiencies, such as training, counseling, or extra help from his supervisor.
PFR File, Tab 1 at 5-6.
¶11 First, as the administrative judge found, the PIP identified specific
examples of the appellant’s unacceptable performance. ID at 16; IAF, Tab 5
at 11-12. Second, we find that the agency provided the appellant with adequate
instructions on how he was to meet the standards of his position through issuance
of the PIP with its attachments, as well as the PIP counseling memoranda with
their attachments. IAF, Tab 5 at 11-29, 38-91. Third, we find that the agency
provided the appellant with adequate assistance to overcome his deficiencies by
providing him with weekly counseling, which is memorialized in memoranda that
were issued to him. 4 Id. at 13, 38-91.
4
Under 5 C.F.R. § 432.104, “[a]s part of the employee’s opportunity to demonstrate
acceptable performance, the agency shall offer assistance to the employee in improving
unacceptable performance.” We find that the agency complied with this requirement.
6
The appellant’s argument that the agency did not provide him the opportunity to
successfully complete his rotational assignment is unavailing.
¶12 The appellant also argues on review that the agency did not provide him an
opportunity to successfully complete his assignments, specifically, that he was
unable to acceptably perform in one of his rotational assig nments because the
agency cut the rotation short. PFR File, Tab 1 at 5. We find that the appellant is
referring to a rotational assignment that he was required to complete prior to the
PIP. IAF, Tab 1 at 28. As discussed above, supra ¶¶ 8-9, this appeal must be
remanded for the administrative judge to make findings as to the appellant’s
pre-PIP performance. To the extent the appellant is arguing that the agency failed
to prove that his performance was unacceptable during the PIP period, we
disagree. E.g., IAF, Tab 5 at 92-99, 243-44, Tab 39 at 54. The decision letter on
the proposed removal states that the appellant failed to meet the first element of
his performance standards because he “failed to complete Audit Readiness
Training in weeks 4, 5, 6, 7 and 8 of the Performance Improvement Plan (PIP)
period and in weeks 6, 7, 8 and 12 of the PIP period [he] did not provide minutes
of meetings at all or timely.” IAF, Tab 4 at 19-20, Tab 5 at 92-99. Though the
appellant asserts on review that a performance evaluation covering the PIP period
noted that he completed the Audit Readiness Training, PFR File, Tab 1 at 5, he
does not assert that he completed the Audit Readiness Training “in a timely
manner,” “attended all meetings pertinent” to the rotation, or “prepare[d]
inclusive, informative and meaningful meeting minutes,” as required by the PIP.
IAF, Tab 5 at 92. In fact, the performance review that the appellant refers to
states that the appellant required “several deadline extensions” to complete the
training and that he “[d]id not consistently provide meeting notes as directed.”
Id. at 244. Accordingly, we find that the agency proved by substantial evidence
that the appellant’s performance was deficient during the PIP period.
7
The appellant has failed to demonstrate that the administrative judge improperly
canceled his request for a hearing.
¶13 The appellant argues that the administrative judge improperly denied his
request for a hearing. PFR File, Tab 1 at 4. The Board’s regulations authorize an
administrative judge to cancel a hearing as a sanction when an appellant engages
in conduct prejudicial to the administration of justice. 5 C.F.R. § 1201.43(e).
The imposition of sanctions is a matter for the administrative judge’s sound
discretion, and, absent a showing that such discretion has been abused, the
administrative judge’s determination will not constitute reversible error. Pecard
v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010). The abuse of
discretion standard is a very high standard, and it allows for great deference to
the administrative judge. Id.
¶14 The circumstances leading up to the cancellation of the hearing in this case
are as follows. After the appellant untimely filed substantively unresponsive
answers to the agency’s discovery requests, the agency filed a motion to compel,
which the administrative judge granted. IAF, Tab 11 at 1-3. The administrative
judge ordered the appellant to provide specific answers to each of the agency’s
interrogatories and requests for admission. Id. at 2. The appellant’s response,
however, demonstrated little effort to earnestly answer the agency’s requests.
IAF, Tab 22 at 4-22. Specifically, he provided the same answer to a multitude of
varied requests, and he was essentially nonresponsive to many of the requests.
Id. After the agency filed a motion for sanctions for the appellant’s refusal to
comply with its motion to compel, the administrative judge ordered the appellant
to submit evidence and argument demonstrating why sanctions should not be
imposed. IAF, Tab 29. In his responses to the show cause order, the appellant
provided some commentary about the discovery requests and offered add itional
evidence and argument regarding the merits of his appeal. IAF, Tabs 30-32. The
appellant failed to provide, however, virtually any explanation for his not
submitting responsive answers to the discovery requests. Id. In light of the
8
appellant’s unresponsiveness to the agency’s discovery requests, the
administrative judge found that the agency would be hindered in its ability to
prepare for a hearing. IAF, Tab 33 at 6. Accordingly, the administrative judge
found the appropriate sanction was to cancel the appellant’s requested hearing.
Id. at 6-7.
¶15 The Board has held that, when an appellant fails to satisfy an order to
provide adequate responses to an agency’s discovery requests, it would be
appropriate to sanction the appellant by precluding him from introducing
evidence concerning the information sought. Wagner v. Department of Homeland
Security, 105 M.S.P.R. 67, ¶ 13 (2007) (citing 5 C.F.R. § 1201.43(a)(2)). In
addition, the Board’s regulations provide that an appropriate sanction in such a
case might include, among other things, drawing an inference in fav or of the
agency regarding the information sought. 5 C.F.R. § 1201.43(a)(1). Here,
despite the appellant’s failure to satisfy an order to provide adequate discovery
responses, the administrative judge neither precluded the appellant from
introducing any evidence nor drew any inferences in favor of the agency. IAF,
Tab 10 at 19-51, Tab 22 at 6-22, Tab 26 at 10-12.
¶16 Instead, the administrative judge canceled the hearing and provided t he
parties the opportunity to introduce additional evidence and argument before she
decided the appeal based on the written record. IAF, Tab 34. The Board has
recognized that an appellant’s right to a hearing should not be denied as a
sanction absent extraordinary circumstances and that a single failure to comply
with an order is generally not sufficient to justify such a drastic sanction. Sims v.
U.S. Postal Service, 88 M.S.P.R. 101, ¶ 7 (2001). The Board has also held,
however, that a single failure to comply with a discovery order may allow for the
more extreme sanction of dismissal if the appellant’s defiance of the discovery
order is willful. Roth v. Department of Transportation, 54 M.S.P.R. 172, 176-77
(1992), aff’d, 988 F.2d 130 (Fed. Cir. 1993) (Table).
9
¶17 Here, considering the administrative judge’s granting of the agency’s
motion to compel, the clarity of the administrative judge’s instructions, the
appellant’s failure to comply with those instructions, and the appellant’s
responses to the show cause order, we find that preponderant evidence
demonstrates that the appellant intended to provide nonresponsive answers to the
agency’s discovery requests and disobey the administrative judge’s order. See id.
We further find that the appellant’s failure to answer the agency’s discovery
requests in good faith constituted conduct prejudicial to the administration of
justice and that cancelling the hearing was appropriate to prevent unfair prejudice
to the agency. See 5 C.F.R. § 1201.43(e). We also find that the appellant’s
arguments that the administrative judge failed to give appropriate consideration
to his pro se status, that the information sought by the agency was immaterial,
and that the Board should have appointed an attorney to rep resent him, are all
without merit. PFR File, Tab 1 at 7-9.
We decline to consider the appellant’s other arguments because he failed to raise
them below.
¶18 Regarding the agency’s decision to fault him for failing to adequately
prepare and file minutes of meetings, the appellant argues in his petition for
review that he prepared and filed “all such minutes that he felt were required,”
and that he had no training on how to prepare such minutes. Id. at 5-6. The
appellant further argues that the agency violated its own policy by failing to
prepare special evaluations of his performance. Id. at 6. However, the appellant
failed to raise these arguments before the administrative judge. The Board
generally 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. Holton v. Department of
the Navy, 123 M.S.P.R. 688, ¶ 18 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).
10
Because the appellant made no such showing concerning t hese arguments, we will
not consider them on review. 5
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.
5
The appellant has not challenged the administrative judge’s findings that he did not
prove that his race, sex, age, or protected equal employment opportunity activity was a
motivating factor in the agency’s decision to remove him, and we find no reason to
disturb those findings. ID at 18-23; PFR File, Tab 1 at 4-9. Because we discern no
error with the administrative judge’s motivating factor analysis or conclusion regarding
these claims, we do not reach the question of whether discrimination or retaliation was
a “but-for” cause of the removal action. Pridgen v. Office of Management and Budget,
2022 MSPB 31.