The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRELL SMITH, DOCKET NUMBER
Appellant, SF-0432-18-0044-I-1
v.
DEPARTMENT OF JUSTICE, DATE: February 7, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nicole M. Ferree , Esquire, Las Vegas, Nevada, for the appellant.
Kathleen Harne and Ted Booth , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting him for unacceptable performance under
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 appeal to the
regional office for further adjudication consistent with Santos v. National
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021), and the
guidance below.
BACKGROUND
The agency placed the appellant, a Correctional Counselor at its Federal
Correctional Institution in Dublin, California, on a performance improvement
plan (PIP) based on his unacceptable performance in two of the critical elements
in his performance plan: (1) Plans, Monitors, and Evaluates; and
(2) Communicates. Initial Appeal File (IAF), Tab 15 at 284-90. The PIP set
forth examples of his unacceptable performance under each element and
enumerated what he needed to do to bring his performance up to at least the
minimally successful level. Id. At the end of the 90-day PIP, the appellant’s
supervisor determined that his performance remained at the unacceptable level on
the same two critical elements. IAF, Tab 15 at 281-82. Consequently, she issued
a notice of proposed removal, dated August 23, 2017, based on unacceptable
performance. Id. at 271-74.
The agency twice extended the deadline for the appellant to respond. Id.
at 119-20. He presented a written response on September 22, 2017, and an oral
response 6 days later. IAF, Tab 15 at 104-05, Tab 16 at 5-315. After considering
the appellant’s responses, the deciding official issued an October 20, 2017
decision letter finding the appellant’s performance unacceptable on the two
critical elements at issue. IAF, Tab 15 at 76-79. However, he mitigated the
proposed removal, instead demoting the appellant to a GS-07 Correctional Officer
position, effective October 29, 2017. Id. at 77.
The appellant filed a timely appeal of his demotion, arguing that the agency
retaliated against him for whistleblowing and for his prior equal employment
opportunity (EEO) activity, discriminated against him on the basis of his
disability, and committed harmful error in issuing the PIP. IAF, Tab 1 at 6.
After holding a hearing, the administrative judge affirmed the agency’s action.
3
IAF, Tab 30, Initial Decision (ID) at 1, 42. She also found that the appellant
failed to establish any of his affirmative defenses. ID at 35-41.
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency filed a response in opposition to the
appellant’s petition for review. PFR File, Tab 3.
ANALYSIS
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance-based action under chapter 43, the agency must
establish the following by substantial evidence: 2 (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) 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 the
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 administrative judge determined that the agency established
all five of the elements set forth above, demonstrating the appellant’s
unacceptable performance in two of the critical elements of his position. ID
at 9-27. The appellant does not challenge the administrative judge’s findings on
the first three elements of the agency’s burden, 3 nor does he challenge her finding
2
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).
3
The appellant argued below that his performance standards were not valid because
they did not articulate what he must do to achieve minimally successful performance.
IAF, Tab 28 at 4. To the extent that the appellant’s performance standards did not
explicitly contain a minimally successful standard, an agency may cure the defect by
fleshing out the standards through additional oral or written communication. Towne v.
4
that the agency warned him of his inadequacies during the appraisal period.
Based on the record before us, we see no reason to revisit the administrative
judge’s findings on these issues.
The agency gave the appellant a reasonable opportunity to improve.
In his petition for review, the appellant reiterates his argument that, due to
his taking a significant amount of sick leave, he was only present for 36 out of the
63 workdays in his 90-day PIP, and that the administrative judge therefore erred
by finding that the agency afforded him a reasonable opportunity to improve.
PFR File, Tab 1 at 7. The employee’s right to a reasonable opportunity to
improve is a substantive right and a necessary prerequisite to all chapter 43
actions. Lee, 115 M.S.P.R. 533, ¶ 32. 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 which is sufficient to provide the employee with an opportunity to
demonstrate acceptable performance. Id.
Here, the record shows that the appellant worked 36 days of his 90-day
PIP, an amount of time that can satisfy the agency’s obligation under chapter 43
to provide a reasonable opportunity to demonstrate acceptable performance. See,
e.g., Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93,
97, 101 (1989) (finding that a 30-day PIP satisfied the agency’s obligation to
provide a secretarial employee with a reasonable opportunity to demonstrate
acceptable performance on ad hoc and timekeeping tasks), aff’d, 899 F.2d 1228
Department of the Air Force, 120 M.S.P.R. 239, ¶ 23 (2013). The administrative judge
here found that the agency did so in the PIP document. ID at 11-12; see IAF, Tab 15
at 287-88. She determined that the appellant’s performance standards were
“sufficiently clear to ensure that the appellant could understand them,” and were
reasonable, realistic, and attainable. ID at 12. She further found insufficient evidence
to support the appellant’s claim that the agency held him to a higher level of
performance than it did from his peers who were not on a PIP. Id. The appellant does
not challenge any of these findings on review.
5
(Fed. Cir. 1990) (Table). Moreover, the appellant’s supervisor was able to
perform many of the tasks that the appellant failed to perform in relatively short
amounts of time. For example, the administrative judge credited the supervisor’s
testimony that it took her about 3 hours to complete all of the audit checks she
had assigned to the appellant and that he failed to complete. ID at 18 & n.4.
Similarly, the administrative judge found that the appellant was well aware, on
the morning of the deadline set forth in the PIP, that he needed to complete a
training course, and he could have done so by the end of the day, but it
nevertheless took him 10 more days to complete this straightforward assignment
and he offered no reason for the delay. ID at 26. Thus, we agree with the
administrative judge’s finding that it was not unreasonable to expect the appellant
to have completed these tasks during the 36 days the appellant worked under the
PIP. The administrative judge correctly found that the agency afforded the
appellant a reasonable opportunity to demonstrate acceptable performance.
The agency established by substantial evidence that the appellant’s performance
was unacceptable in two critical elements.
The critical element of Plans, Monitors, Evaluates.
Following her analysis of the documentary record and the testimony before
her concerning the specific tasks set forth in the appellant’s PIP, the
administrative judge determined that the appellant had failed to meet the
minimally successful performance level concerning his performance of two of the
three tasks assigned in the PIP under the critical element, Plans, Monitors, and
Evaluates, i.e., completing the central file audit checklists and running the daily
inmate discipline sentry logs. ID at 15-23; IAF, Tab 15 at 287-88. To complete
the audit checklists, the appellant was required to complete checklists for the
160 cases in his caseload. IAF, Tab 15 at 285, 287. The task, originally assigned
on December 19, 2016, had an initial due date of April 3, 2017, which was
extended to May 11, 2017, during the PIP. Id. at 285, 287. The administrative
judge found that the bi-annual task was properly assigned to the appellant prior to
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his placement on the PIP and further found it undisputed that he did not complete
a single checklist during the PIP period. ID at 17. She also found that the
appellant had adequate time during the PIP to complete the task, considering the
appellant’s testimony that it took him about 10 minutes per file to complete a
checklist, and his supervisor’s testimony that it took her 3 hours to complete all
the checklists she had assigned to the appellant. ID at 18 & n.4, IAF, Tab 27,
Hearing Compact Disc (HCD) (testimony of the appellant and the appellant’s
supervisor). The administrative judge concluded from the appellant’s testimony
that the checklists were not a priority for him and she found his claim that his
supervisor had impeded his efforts to complete the task was not credible, citing
the appellant’s failure to raise the issue in contemporaneous emails, despite
repeatedly doing so in other instances in which he accused his supervisor of
inappropriately blaming him for performance deficiencies. ID at 19-20.
The appellant was also required to complete Inmate Discipline Daily Logs
each day to track Unit Disciplinary Committee hearings on his caseload. IAF,
Tab 15 at 271, 287. The administrative judge noted that this assignment was not
a daily responsibility for the appellant before the PIP, citing his supervisor’s
testimony that she had required him to perform this task on a daily basis under the
PIP to ensure that he had knowledge of the disciplinary incidents in the unit for
which he was responsible, in an effort to facilitate his ability to timely meet his
obligations. ID at 21; HCD (testimony of the supervisor). The appellant did not
complete this task on six occasions, May 7-9, 15, 22, and July 17, 2017. IAF,
Tab 15 at 271. The administrative judge concluded that the appellant’s testimony
concerning his excuse for why he failed to perform this task between May 8
and 24, 2017, was not credible. ID at 21; HCD (testimony of the appellant). On
that point, the administrative judge credited the supervisor’s testimony that the
appellant first asked for help on this task on May 24 over the appellant’s
testimony that he asked for help on May 8, but did not receive it until May 24,
2017, finding the appellant’s testimony that his supervisor did not know the
7
answer on May 8 was inconsistent with the record concerning the supervisor’s
familiarity with and knowledge of the system used for producing the reports. ID
at 21-23; HCD (testimony of the appellant and the supervisor). On that basis, she
found that the agency established that the appellant failed to meet the minimally
successful level on this task during the PIP. ID at 23. The administrative judge
found that the appellant was not responsible for a third failure noted on the
performance log and cited in his proposed removal, an outstanding incident
report. ID at 23; IAF, Tab 15 at 271, 281. Nevertheless, as set forth above, based
on her findings concerning the two other tasks assigned in the PIP and associated
with this critical element that she determined the appellant failed to perform, the
administrative judge found that the agency demonstrated by substantial evidence
that the appellant’s performance on the critical element of Plans, Monitors, and
Evaluates remained below minimally successful during the PIP period. Id. We
agree.
The critical element of Communicates.
Concerning this critical element, the PIP required the appellant, with few
exceptions, to be in the unit for 9 hours out of his 10-hour shift performing duties
such as processing inmate requests and inspecting cells, and to register for and
successfully complete several courses on the agency’s Skillsoft training system.
IAF, Tab 15 at 287-88. The supervisor’s performance log indicates that, although
the appellant had exhibited improvement in this area, he had still failed to
complete the first of the assigned Skillsoft courses by the due date. Id. at 282.
She also observed that, despite the additional open house hours, and based on
numerous complaints, the appellant still needed to improve his accessibility to
inmates. Id. The administrative judge did not credit the appellant’s claim that he
was confused about which course to take, finding that he was aware that he had
missed the deadline to take the course and that he had been told how to access the
correct one listed in the PIP. ID at 26. Because he completed this course,
Avoiding Time Stealers, 10 days after the May 30, 2017 deadline set forth in the
8
PIP, the administrative judge found that the appellant failed to meet one of the
requirements necessary for him to reach the minimally successful level in the
Communicates critical element. ID at 26.
The appellant’s failure on some of the tasks on the PIP was failure on the
two critical elements at issue as a whole.
The appellant argues on review that, because the agency only established
three out of the five allegations of unacceptable performance that it alleged in the
proposed adverse action, its evidence does not establish his unacceptable
performance by substantial evidence on either of the critical elements it alleged
therein. PFR File, Tab 1 at 6. He also contends that the agency failed to
demonstrate how the tasks set forth in the PIP were of such importance that his
failure to compete those tasks warrants a finding that he failed a particular critical
element or that his overall performance was unacceptable. Id.
When, as here, an appellant’s performance was unacceptable on one or
more, but not all, components of a critical element, the agency must show by
substantial evidence that the appellant’s performance warranted an unacceptable
rating on the element as a whole. Lee, 115 M.S.P.R. 533, ¶ 36. Such evidence
may include evidence that the appellant knew or should have known the
significance of the sub-elements at issue and evidence showing the importance of
the sub-elements in relation to the duties and responsibilities with which the
critical element as a whole is concerned. Id.
Contrary to the appellant’s contentions on review, PFR File, Tab 1 at 6, the
sum and substance of the administrative judge’s analysis shows that he knew or
should have known the significance of each of the tasks set forth in his PIP, and
we agree with her ultimate conclusion that his deficiencies were significant
enough to justify his demotion, ID at 42. The tasks set forth in the PIP directly
relate to the associated critical elements. For example, the Inmate Discipline
Daily Logs and Central File Audit Checklists required by the appellant’s PIP are
tools that address the need “to ensure safe, secure, and efficient operations,” as
9
stated under the critical element of Plans, Monitors, and Evaluates. IAF, Tab 15
at 287, 299. Under the critical element of Communicates, the required tasks
involved the appellant’s presence in the unit seeing to the needs of the inmates
and taking several courses involving communication and time management. Id.
at 287-88, 302-03. Moreover, the appellant’s PIP made clear that unacceptable
performance on any task associated with those critical elements would indicate
unacceptable performance on the element as a whole and could subject him to
removal. Id. at 289. Although the appellant is correct that the administrative
judge found that the agency failed to prove two of the performance deficiencies it
alleged, we agree with the administrative judge’s analysis that the agency
established the appellant’s unacceptable performance in at least one of his critical
elements by substantial evidence, which is sufficient to meet its burden of proof.
ID at 42; see Lee, 115 M.S.P.R. 533, ¶¶ 5, 37.
Remand is required in light of Santos .
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, 1363, that,
in addition to the five elements of the agency’s case set forth above, the agency
must also “justify the institution of the PIP” by proving by “substantial evidence
that the employee’s performance was unacceptable . . . before 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 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., ¶¶ 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.
10
On remand, the administrative judge should make new findings as to the
appellant’s disparate treatment disability discrimination and EEO retaliation
claims.
The administrative judge found that the appellant failed to prove disability
discrimination based on a failure to reasonably accommodate his disability
because he did not articulate an accommodation that would have permitted him to
perform his duties at the fully successful level. ID at 32-33. The appellant does
not challenge this finding on review, and we see no reason to disturb it.
As to the appellant’s remaining claims, the Board recently clarified that
claims of disability discrimination and EEO retaliation based on activity
protected under Title VII and the Age Discrimination in Employment Act are
subject to a motivating factor standard. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 21, 30. To establish a violation of the anti-retaliation
provision of the Rehabilitation Act, however, an appellant must establish that the
protected activity was a “but-for” cause of the employer’s action. Id., ¶¶ 44-47;
Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 32. On remand, the
administrative judge shall reconsider the appellant’s disparate treatment disability
discrimination and EEO retaliation claims under the recently clarified legal
standards along with any additional evidence adduced.
The appellant failed to show that the agency committed harmful error.
The appellant argued below that the agency failed to give him enough time
to respond to the notice of proposed removal. IAF, Tab 28 at 5. The
administrative judge found that the agency did not commit harmful error because
the record showed that the agency gave the appellant adequate time to respond,
i.e., 15 days following his receipt of the proposal, and that the deciding official
subsequently granted the appellant a 7-day extension of that deadline. ID at 35;
IAF, Tab 15 at 118. She found that the appellant responded within the extended
timeframe, and the deciding official considered his response, as well as
documents the appellant submitted after the extended timeframe. ID at 35-37;
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IAF, Tab 15 at 76, Tab 16, Tab 26. The administrative judge also rejected the
appellant’s argument that the agency was required to allow him official time to
craft a response to the notice of proposed removal because he was not working
during the response period, but instead was receiving pay from the Department of
Labor for a workplace injury. ID at 36. While the appellant alleged that he
lacked access to his email and documents during the response period, the
administrative judge determined that he could have accessed those documents
through the agency’s human resources office. ID at 36-37. The appellant has not
challenged these findings, and we discern no basis to disturb them.
The administrative judge must reconsider on remand whether the agency
established by clear and convincing evidence that it would have demoted the
appellant in the absence of his protected disclosure .
In an adverse action appeal in which the appellant has raised a claim of
whistleblower reprisal, once the agency proves its adverse action case, the
appellant must show by preponderant evidence that he made a disclosure
protected under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing
factor in the agency’s personnel action. 4 Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 19 (2013). If the appellant establishes a prima facie case of
reprisal for whistleblowing, the burden of persuasion shifts to the agency to show
by clear and convincing evidence that it would have taken the same personnel
action absent any protected activity. Id., ¶ 32.
The administrative judge found that the appellant established a prima facie
case of reprisal for whistleblowing and we see no reason to disturb that finding.
She further found that the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s
whistleblowing. However, it is possible that additional evidence taken on remand
4
Approximately 2 months before the initial decision was issued in this appeal, the
National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115 -91,
131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA
amended various provisions of Title 5 of the U.S. Code. However, those amendments
do not implicate the issues here.
12
could impact this finding. Therefore, the administrative judge shall reconsider on
remand whether the agency proved by clear and convincing evidence that it would
have taken the same action in the absence of whistleblowing.
Weingarten-type rights do not apply to meetings concerning performance .
The appellant contends for the first time in his petition for review that he
has new and material evidence that the agency violated his right to union
representation during PIP meetings and the meeting at which he received the
agency’s demotion decision. PFR File, Tab 1 at 11-15; ID at 38-39. The
appellant presents documents pertaining to unfair labor practices charges that
predate the initial decision and his own prehearing submissions. PFR File, Tab 1
at 7-8, 11-15; ID; IAF, Tab 19. He also submits a letter from the Federal Labor
Relations Authority that is not material to the outcome of this case. PFR File,
Tab 1 at 7-8, 10. Because the appellant has not shown that either these
documents or their contents were unavailable to him before the record closed
despite his due diligence, and because he has not shown that they are material to
the outcome of his case, we do not consider them. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980); 5 C.F.R. § 1201.115.
We have considered the appellant’s remaining arguments on review but
find they provide no basis for reversing the initial decision.
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ORDER
For the reasons discussed above, we remand this appeal to the Western
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the judge shall accept argument and evidence and make findings as to
whether the agency showed that the appellant’s performance was unacceptable
prior to the PIP. The administrative judge shall also reconsider the appellant’s
affirmative defenses of disparate treatment disability discrimination, EEO
retaliation, and whistleblower reprisal and make new findings on those issues.
The administrative judge may incorporate her prior findings, as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.