The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK R. CARTER, DOCKET NUMBER
Appellant, CH-0432-16-0400-I-1
v.
DEPARTMENT OF COMMERCE, DATE: April 17, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Mark R. Carter, Detroit, Michigan, pro se.
Chieko Clarke, Esquire, and Josh Hildreth, Esquire, Alexandria, Virginia,
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 based on unacceptable performance under 5 U.S.C.
chapter 43 and found that he did not prove his affirmative defenses. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal challenging his removal from Federal service
for unacceptable performance pursuant to chapter 43. Initial Appeal File (IAF),
Tab 1. After a hearing, the administrative judge found that the agency proved the
unacceptable performance charge by substantial evidence. IAF, Tab 88, Initial
Decision (ID) at 2-18. The administrative judge also found that the appellant did
not prove his affirmative defenses of harmful procedural error, race and disability
discrimination, and violation of the merit system principles found at 5 U.S.C.
§ 2301(b). ID at 18-43. Accordingly, the administrative judge affirmed the
removal. ID at 2, 44.
¶3 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 7, 9-10. The appellant argues the following on review: (1) his production
critical element is invalid because it was measured by his supervisor’s subjective
assessment of his work product; (2) his supervisor subjected his work to
“heightened scrutiny”; (3) the agency committed harmful error; (4) the agency’s
removal decision is not in accordance with law; (5) he is entitled to the Bruner
presumption, see Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.
Cir. 1993); and (6) the administrative judge abused her discretion by denying his
motion for sanctions and granting the agency’s motion to compel discovery. PFR
File, Tab 7. Although we find the appellant’s arguments do not warrant
disturbing the initial decision, we must nonetheless remand this appeal for further
adjudication in light of the recent decision by the U.S. Court of Appeals for the
Federal Circuit in Santos v. National Aeronautics and Space Administration,
990 F.3d 1355, 1360-61 (Fed. Cir. 2021), issued after the initial decision in this
matter.
3
¶4 We first address the appellant’s assertion that his production critical
element is invalid under 5 U.S.C. § 4302(c)(1) 2 because it was measured by his
supervisor’s subjective assessment of his work product. PFR File, Tab 7 at 18,
24-29, Tab 10 at 7-8. We agree with the administrative judge that the appellant’s
production element is valid because he encumbered a technical position —Patent
Examiner—that allowed for and required some subjective discretion by his
supervisor when determining his work quality. ID at 9-10; see Greer v.
Department of the Army, 79 M.S.P.R. 477, 483-84 (1998).
¶5 Next, the appellant asserts that his supervisor applied GS-12 to GS-15 level
performance standards to his GS-11 position and subjected his work to
“heightened scrutiny.” PFR File, Tab 7 at 24-26, 29-30. However, the agency
expressly reduced the baseline GS-12 Patent Examiner performance expectations
by 10% because the appellant encumbered a GS-11 position. IAF, Tab 9 at 43,
Tab 11 at 9; HT 12:19-13:14. Similarly, the record evidence shows that the
agency neither changed nor otherwise increased the appellant’s perfo rmance
standards during or after his performance improvement plan (PIP), nor did his
supervisor subject his work to “heightened scrutiny.” ID at 14.
¶6 The appellant continues to assert on review, as he did before the
administrative judge, that the agency committed the following harmful errors:
(1) removing him more than 30 days after the expiration of the notice period
required by 5 U.S.C. § 4303(b)(1)(A), which he argues constitutes an
unacceptable-performance removal statute of limitations pursuant to 5 U.S.C.
§ 4303(c)(1); (2) failing to extend his oral and written response time by
60-90 days and failing to tape record his December 11, 2015 oral reply in
violation of the collective bargaining agreement; and (3) failing to consider his
2
Until recently, this provision was codified at 5 U.S.C. § 4302(b)(1). See National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1097(d)(1),
131 Stat. 1283, 1619 (2017).
4
medical condition prior to his removal. 3 PFR File, Tab 7 at 20-24, 30-37, Tab 10
at 8-9; IAF, Tab 55, Tab 70 at 2. We agree with the administrative judge, for the
reasons stated in the initial decision, that the appellant failed to prove harmful
error, i.e., that any agency error was likely to have caused it to reach a conclusion
different from the one it would have reached in the absence or cure of the error .
ID at 18-27; see LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453,
¶ 14 (2016); 5 C.F.R. § 1201.4(r).
¶7 Along the same lines, the appellant contends that the agency lacked the
legal authority to remove him beyond the 30-day period in 5 U.S.C. § 4303(c)(1)
and thus his removal was not in accordance with law. PFR File, Tab 7 at 20 -21;
see 5 U.S.C. § 7701(c)(2)(C). Even assuming that the appellant timely raised this
affirmative defense before the administrative judge, we find no basis to disturb
the initial decision. The “not in accordance with law” defense is directed at the
decision itself, i.e., was the decision in its entirety in accordance with law? See
Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985); see also
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991)
(confirming that an appealable action will only be reversed as not in accordance
with law if there is no legal authority for the agency’s action). Despite t he
appellant’s contrary assertions, the agency could lawfully remove him based on
his unacceptable performance. 5 U.S.C. § 4303(a); 5 C.F.R. §§ 432.102(a),
432.105. As discussed, the agency’s failure to abide by the 30-day period in
5 U.S.C. § 4303(c)(1) was not a harmful error. See supra ¶ 6; ID at 18-20; see
3
The deciding official was required to consider the appellant’s medical condition once
he raised it in his written and oral responses to the proposed removal. See 5 C.F.R.
§ 432.105(a)(4)(iv); IAF, Tab 4 at 49-50, Tab 15 at 31-32. The deciding official
testified that he considered every issue that the appellant raised in his oral response,
including his medical condition, prior to removing him for unacceptable performance.
HT 71:25-72:23 (testimony of the deciding official). Aside from his bare assertion to
the contrary, there is no record evidence to suggest that the deciding official failed to
consider the appellant’s medical condition.
5
also Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶¶ 6-8 (2002) (noting
that 5 U.S.C. § 4303(c)(1) is a procedural right that is subject to harmful error
analysis).
¶8 Further, the appellant misinterprets 5 U.S.C. § 4303 and the Board’s case
law to the extent he asserts that the agency was required to effect his removal
within 1 year of the commencement of the PIP. PFR File, Tab 7 at 23 -24. This
argument was considered and rejected by the Board in White v. Department of
Veterans Affairs, 120 M.S.P.R. 405, ¶¶ 6-7 (2013). In White, the appellant argued
that the agency’s demotion action was improper because the April 2012 proposal
notice was not issued until more than a year after the commencement of the PIP
in February 2011. Id., ¶ 7. The Board considered whether the agency had
complied with the following regulatory provisions: (1) once an employee has
been afforded a reasonable opportunity to improve, an agency may propose a
reduction in grade or removal action if the employee’s performance “during or
following” the PIP is unacceptable in one or more of the critical elements
involved in the PIP; (2) if an employee who has been placed on a PIP performs
acceptably for 1 year (starting with the commencement of the PIP), he is entitled
to a new PIP if his performance again becomes unacceptable; and (3) a proposed
reduction in grade or removal may be based on instances of unacceptable
performance that occur within a 1-year period ending on the date of notice of
proposed action. Id., ¶ 6 (citing 5 C.F.R. § 432.105(a)(1)-(3)). We find that the
agency has complied with these provisions. The appellant’s performance became
unacceptable immediately following the PIP in the production critical element,
which was the subject of the PIP. IAF, Tab 4 at 91-94. The notice of proposed
removal was issued on November 5, 2015, and the agency pr operly relied on
instances of unacceptable performance occurring between March 8 and May 30,
2015, which is within 1 year of the notice of proposed removal. Id. Accordingly,
the appellant has not shown that the removal decision is not in accordance with
law.
6
¶9 Next, the appellant alleges that he was entitled to the Bruner presumption.
PFR File, Tab 7 at 34-36; see Bruner, 996 F.2d at 294. The administrative judge
did not discuss the Bruner presumption in the initial decision. Bruner holds that
an employee’s removal for physical inability to perform the essential functions of
his position constitutes prima facie evidence that he is entitled to disability
retirement, after which the burden shifts to the Office of Personnel Management
to produce evidence sufficient to find that the applicant is not entitled to
disability retirement benefits. Bruner, 996 F.2d at 294. Bruner does not apply to
this appeal because the appellant was removed for unacceptable performance, not
physical inability to perform the essential functions of his position. ID at 4.
¶10 The appellant further contends that the administrative judge abused her
discretion by (1) denying his sanctions motion based on the agency’s initial
failure to include his full written response to the prop osed removal in the agency
file, and (2) granting the agency’s motion to compel over the appellant’s
objection that the discovery requests were improperly served by email. PFR File,
Tab 7 at 19-20, 37-40; IAF, Tabs 42-43. We find no basis to conclude that the
administrative judge abused her discretion. Although the appellant disagrees with
the administrative judge’s decision to deny his sanctions motion, he has provided
no legitimate argument that she abused her discretion, especially considering that
the agency corrected its inconsequential error within a few days. See Pecard v.
Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010); IAF, Tab 4 at 53-88,
Tab 15. Similarly, although the appellant argues that 5 C.F.R. § 1201.73(a)
prohibits agencies from serving discovery requests via email, and analogizes to
Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure, we agree with the
administrative judge that the Board is not bound by the Federal Rules of Civil
Procedure and looks to them solely for general guidance. IAF, Tab 43; see Social
Security Administration v. Long, 113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d
526 (Fed. Cir. 2011); 5 C.F.R. § 1201.72(a). We find that the administrative
judge was not bound to follow Rule 5(b)(2)(E) here and she did not abuse her
7
discretion by requiring the appellant to respond to the agency’s discovery
requests. See Key v. General Services Administration, 60 M.S.P.R. 66, 68 (1993)
(stating that an administrative judge has broad discretion in ruling on discovery
matters).
¶11 In his petition for review, the appellant does not challenge the
administrative judge’s finding that he failed to prove his race discrimination
defense. PFR File, Tab 7, Tab 10 at 9. In analyzing the appellant’s race
discrimination claim, the administrative judge identified the legal standard set
forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), she
discussed the various methods of direct and circumstantial evidence, and she
concluded that the appellant did not prove that his race was a motivating factor in
the removal decision. ID at 27-34. The Board has since overruled Savage to the
extent it held that the McDonnell Douglas framework is not applicable to Board
proceedings. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 25
(citing McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973)).
Nonetheless, the outcome of this appeal under Pridgen would be the same as that
arrived at by the administrative judge. Notably, under Pridgen, to obtain any
relief, the appellant must still show, at a minimum, that the prohibited
consideration of race was a motivating factor in the agency’s decision to remove
him, Pridgen, 2022 MSPB 31, ¶¶ 20-22, and we agree with the administrative
judge that the appellant failed to make this showing. ID at 27-34. Because the
appellant failed to prove that race was a motivating factor, he necessaril y failed to
prove it was a “but-for” cause of his removal. See Pridgen, 2022 MSPB 31, ¶ 22.
¶12 The appellant also does not challenge the administrative judge’s finding
that he failed to prove his disability discrimination defense, including his
8
disparate treatment and failure to accommodate claims. 4 PFR File, Tab 7, Tab 10
at 9. Nevertheless, we clarify the administrative judge’s analysis of the
appellant’s disparate treatment claim. The appellant alleged discrimination based
on postherpetic neuralgia, i.e., post-shingles nerve pain, which began in
mid-May 2015, before the May 30, 2015 completion of the first post-PIP
maintenance period. IAF, Tab 55 at 33-35, Tab 70 at 7; HT 241:14-24 (testimony
of the appellant). Assuming without deciding that the appellant’s postherpetic
neuralgia constitutes a disability as defined by 42 U.S.C. § 12102, he has not
provided any evidence to show that his disability was a motivating factor in the
agency’s decision to remove him for unacceptable performan ce. E.g., IAF,
Tab 15 at 31-32, Tab 55, Tab 80; HT 71:25-72:20, 84:5-11 (testimony of the
appellant); see Pridgen, 2022 MSPB 31, ¶¶ 40-42 (explaining that, when
disability discrimination is a motivating factor, injunctive or other
forward-looking relief is available and, to obtain full relief, an appellant must
show that disability discrimination is a but-for cause of the personnel action).
Aside from timing, there is no evidence to suggest that the deciding official
considered the appellant’s disability, rather than his unacceptable performance, as
a factor when deciding to remove him. Because the appellant failed to prove his
disability was a motivating factor, he necessarily failed to prove that it was a
“but-for” cause of his removal. See Pridgen, 2022 MSPB 31, ¶ 42. Accordingly,
we affirm the administrative judge’s finding that the appellant failed to prove his
disparate treatment disability discrimination defense. ID at 37 -42.
¶13 Notwithstanding, we must remand this appeal in light of recent case law to
make findings as to the appellant’s performance prior to the implementation of
the PIP. When the initial decision was issued, the Board’s case law stated that, in
4
As a Federal employee, the appellant’s claim of disability discrimination arises under
the Rehabilitation Act of 1973, which incorporates the standards under the Americans
with Disabilities Act, as amended. See Pridgen, 2022 MSPB 31, ¶ 35.
9
an appeal of a performance-based removal under chapter 43, the agency was
required to prove the following by substantial evidence: (1) OPM 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) his performance standards were valid under 5 U.S.C.
§ 4302(c)(1); (4) the agency warned him of the inadequacies of his performance
during the appraisal period and gave him an adequate opportunity to demonst rate
acceptable performance; and (5) after an adequate improvement period, his
performance remained unacceptable in at least one critical element. Lee v.
Department of Veterans Affairs, 2022 MSPB 11, ¶ 13. The administrative judge
analyzed each of these elements in turn and found that the agency met its burden
by substantial evidence. ID at 5-18. We agree with those findings. However,
while this case was pending on review, the Federal Circuit recognized for the first
time that an agency must prove an additional element to support an adverse action
under chapter 43. Santos, 990 F.3d at 1360-61. Specifically, the agency “must
justify institution of a PIP” by proving the employee’s performance was
unacceptable before the PIP. Id.; Lee, 2022 MSPB 11, ¶ 14. The holding applies
to all pending cases, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16.
¶14 Although the record contains some evidence as to the appellant’s pre-PIP
performance, the parties were not on notice as to this element and, accordingly,
we must remand the appeal to give the parties the opportunity to present
additional evidence as to whether the appellant’s performance was unacceptable
in one or more critical elements prior to the issuance of the PIP. Id., ¶¶ 15-17.
On remand, the administrative judge shall accept argument and evidence on this
issue, and shall hold a supplemental hearing, if appropr iate. The administrative
judge shall then issue a new decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate the prior findings on the other elements of
10
the agency’s case and the appellant’s affirmative defenses in the remand initial
decision. See id. However, 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, the administrative judge 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).
ORDER
¶15 For the reasons discussed above, we remand this case to the 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.