Opinion

Angela Atkinson v. National Aeronautics and Space Admin

Court: Merit Systems Protection Board
Filed: Feb 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

finding performance standards were not impermissibly subjective because, inter alia, the employee’s supervisor “gave direct, precise feedback on the 6 deficiencies in [the employee’s] work and clear instruction on how to remedy them”

How later courts described this case

finding performance standards were not impermissibly subjective because, inter alia, the employee’s supervisor “gave direct, precise feedback on the 6 deficiencies in [the employee’s] work and clear instruction on how to remedy them”
stating that the analysis of the validity of performance standards is not confined to the written standard
finding that standards requiring that “all web pages” meet certain requirements provided for no exceptions and were thus absolute
testimony of the Travel Office Lead

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGELA A. ATKINSON, DOCKET NUMBER

Appellant, AT-0432-20-0510-I-1

NATIONAL AERONAUTICS AND DATE: February 7, 2024

SPACE ADMIN,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,

Georgia, for the appellant.

Daniel Shaver , Orlando, Florida, for the agency.

Samantha R. Cochran , Esquire, Kennedy Space Center, Florida, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed her chapter 43 performance-based removal. On petition for review, the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

appellant challenges, among other things, the validity of her performance

standards. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

supplement the administrative judge’s analysis of the appellant’s discrimination

and retaliation claims, we AFFIRM the initial decision.

BACKGROUND

The appellant, who is deaf, was formerly a travel office Financial

Management Specialist. Initial Appeal File (IAF), Tab 1 at 8, Tab 45, Hearing

Recording 2 (HR 2) (testimony of the appellant). The appellant’s primary duty

was to monitor the Travel Request Mailbox (TRM), an electronic mailbox

designated to receive, among other things, requests for travel authorizations or

reimbursement. IAF, Tab 44, Hearing Recording 1 (HR 1) (testimony of the

Travel Office Lead). The appellant’s responsibilities were documented in the

Travel Request Mailbox Instructions (TRMI), a detailed set of instructions for

monitoring the TRM, and included classifying emails in the TRM inbox,

forwarding emails to designated personnel, and documenting the status of

travel-related requests. Id.; IAF, Tab 24 at 23-38. Under critical element 2 of her

performance standards, Process Civil Service Travel, the appellant was required

to, among other things, produce accurate work with “no significant errors.” IAF,

Tab 21 at 34-36. The agency accommodated the appellant’s deafness through

various means, including providing her the assistance of American Sign Language

(ASL) interpreters. HR 1 (testimony of the equal employment opportunity (EEO)

Specialist).

As the individuals who oversaw the appellant’s performance, the

appellant’s supervisor and the Travel Office Lead notified the appellant of her

mistakes and provided her with training and instruction. Id. (testimony of the

Travel Office Lead, testimony of the appellant’s supervisor); IAF, Tab 24

at 97-98, Tab 42 at 26-45, Tab 49 at 10-84, Tab 50. In October 2016, the

supervisor informed the appellant that she was not meeting expectations in

critical element 2 due to the significant number of errors she was making in

monitoring the TRM. HR 1 (testimony of the appellant’s supervisor). In May

2017, after deeming the appellant’s performance unacceptable for element 2 in

her first performance appraisal, the supervisor placed the appellant on a 60-day

performance improvement plan (PIP). IAF, Tab 21 at 31-55. The PIP informed

the appellant that she was required to demonstrate acceptable performance in

critical element 2 by the end of the PIP period by, among other things, “correctly

address[ing] all emails in the [TRM] according to the TRMI.” Id. at 53-55. The

agency provided the appellant with a video ASL translation of the TRMI before

the PIP and full-time assistance of interpreters prior to and throughout the PIP.

Id. at 53; IAF, Tab 24 at 91-94. The appellant’s supervisor and the Travel Office

Lead met with the appellant regularly during the PIP to discuss her performance,

including her continuing errors. IAF, Tab 22 at 11-34, 38-60, 64-82, 89-103,

Tab 23 at 19-58, 65-102.

After the PIP expired, the agency removed the appellant under 5 U.S.C.

chapter 43 for unacceptable performance in critical element 2 of her position.

IAF, Tab 1 at 8; Tab 23 at 4-16. The supervisor noted in the proposal notice that,

among other failures, the appellant did not correctly address all emails in the

TRM because her over 180 errors during the PIP period were “excessive.” IAF,

Tab 23 at 10-14. The appellant timely appealed her removal to the Board and

alleged disparate treatment disability discrimination, failure to accommodate, and

EEO retaliation. IAF, Tab 36 at 1-2, Tab 43 at 3-5.

After holding a hearing, the administrative judge issued an initial decision

affirming the removal and denying the appellant’s affirmative defenses. IAF,

Tab 51, Initial Decision (ID). The administrative judge found that the agency

established the elements of its performance-based action in accordance with the

standards set forth in Santos v. National Aeronautics and Space Administration ,

990 F.3d 1355 (Fed. Cir. 2021) and Semenov v. Department of Veterans Affairs,

2023 MSPB 16. ID at 8-17. The administrative judge found that the appellant

failed to prove her failure to accommodate affirmative defense, finding that the

appellant was a qualified individual with a disability, but she was not denied a

reasonable accommodation. ID at 18-22. The administrative judge also found

that the appellant failed to prove disparate treatment disability discrimination

because she provided no evidence that her disability was a motivating factor in

her removal. ID at 22-23. Finally, the administrative judge found that the

appellant failed to show that her protected EEO activity, which occurred while

she was employed at another agency, was a motivating factor in her removal. ID

at 23-25.

The appellant filed a petition for review. Petition for Review (PFR) File,

Tab 1. The agency filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s performance standards were valid.

In affirming the appellant’s performance-based removal, the administrative

judge correctly cited and applied the Board’s precedent setting forth the relevant

legal standard for such actions under chapter 43, and she found that the agency

proved all elements of its case by substantial evidence. ID at 8-17. The appellant

has not challenged those findings, except as to the validity of her performance

standards, and we find no reason to disturb them.

On review, the appellant repeats arguments which she raised below

regarding the validity of her performance standards. PFR File, Tab 1 at 7-11;

IAF, Tab 45, HR 2 (the appellant’s closing argument). Because the

administrative judge did not address these arguments, we do so here.

To prevail in an appeal of a performance-based removal under chapter 43,

the agency must prove by substantial evidence that, among other things, the

employee’s performance standards are valid. Semenov, 2023 MSPB 16, ¶ 14;

Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). In

challenging the validity of her performance standards, the appellant first claims

that her standards were vague because the requirement that her work contain “no

significant errors” was overly subjective, as what constituted a “significant” error

was never defined. PFR File, Tab 1 at 7; IAF, Tab 21 at 36. The Board has held

that the fact that a performance standard may call for a certain amount of

subjective judgment on the part of the employee’s supervisor does not

automatically invalidate it. Henderson v. National Aeronautics and Space

Administration, 116 M.S.P.R. 96, ¶ 23 (2012). The Travel Office Lead and the

appellant’s supervisor testified that they understood “significant errors” to be

those which impacted the processing of travel-related requests and gave multiple

examples of such errors by the appellant. HR 1 (testimony of the Travel Office

Lead, testimony of the appellant’s supervisor). In light of this common-sense

interpretation and the extensive feedback the appellant received regarding her

errors both before and during the PIP period, we find that the use of the word

“significant” did not render the standard vague or overly subjective. See

Salmon v. Social Security Administration, 663 F.3d 1378, 1381-82 (Fed. Cir.

2011) (finding performance standards were not impermissibly subjective because,

inter alia, the employee’s supervisor “gave direct, precise feedback on the

deficiencies in [the employee’s] work and clear instruction on how to remedy

them”).

Next, the appellant claims that, by requiring her to “correctly address all

emails in the [TRM] according to the TRMI,” the PIP rendered the “no significant

errors” standard an absolute standard. PFR File, Tab 1 at 7-9; IAF, Tab 21 at 54.

The appellant is correct to assert that the standard in the PIP was facially

absolute. See Guillebeau v. Department of the Navy, 362 F.3d 1329, 1334 (Fed.

Cir. 2004) (finding that standards requiring that “all web pages” meet certain

requirements provided for no exceptions and were thus absolute). The record

shows, however, that it was never applied as an absolute standard. In Guillebeau,

362 F.3d at 1337, the U.S. Court of Appeals for the Federal Circuit found

permissible an agency’s removal of an employee under a performance standard

which, though absolute, was applied reasonably. Here, the appellant’s supervisor

testified that it would have been unrealistic to expect the appellant not to make

any errors. HR 1 (testimony of the appellant’s supervisor). She added that she

deemed the appellant unsuccessful based on the significance of her errors in

impact and amount, as well as their repetitive nature, which evidenced a failure to

learn the TRM process. Id. Similarly, the Travel Office Lead testified that he did

not expect the appellant to be perfect but that the frequency of her errors was

excessive. Id. (testimony of the Travel Office Lead). Because the record shows

that the agency did not apply an absolute standard to deem the appellant’s

performance unsuccessful but did so based on her many significant errors under

the reasonable “no significant errors” standard , we find that the agency did not

hold the appellant to an invalid absolute standard. See Salmon, 663 F.3d at 1382

(stating that the analysis of the validity of performance standards is not confined

to the written standard).

The appellant also submits new arguments on review regarding the validity

of her performance standards, which she did not raise below. 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. Clay v. Department of the

Army, 123 M.S.P.R. 245, ¶ 6 (2016). Because the appellant has not shown that

these new arguments are based on new and material evidence not previously

available despite due diligence, we need not consider them. In any event, the

appellant’s new arguments lack merit. Her claim that the proposal notice cited

certain performance indicators that were not in the PIP and thus “readjusted” her

standards is inaccurate, as those indicators were contained in her original

performance standards. PFR File, Tab 1 at 11; IAF, Tab 21 at 34-35, Tab 23

at 11. The appellant also claims that the agency intentionally misled her by

requiring certain deliverables described in the PIP but in a different paragraph

than that which listed her ongoing duties under the PIP. PFR File, Tab 1 at 11;

IAF, Tab 21 at 54-55. However, she was clearly instructed in the PIP to provide

the deliverables she references, including the weekly workload reports and a

certificate for a training course. IAF, Tab 21 at 54. That these instructions for

one-time or intermittent obligations were listed in a paragraph other than that

which listed her ongoing duties did not detract from their clarity. Accordingly,

these new claims afford no basis to disturb the administrative judge’s conclusion

that the performance standards were valid.

The appellant has not proven her affirmative defenses of disparate treatment

disability discrimination and EEO retaliation.

After the initial decision was issued, the Board clarified the proper analytic

framework for adjudicating disparate treatment disability discrimination claims.

Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 35-42. Under

Pridgen the appellant bears the initial burden of proving by preponderant

evidence that her disability was a motivating factor in the agency’s removal

action. Pridgen, 2022 MSPB 31, ¶ 40. The administrative judge here found that

the appellant failed to show that her disability was a motivating factor in her

removal. ID at 22-23. Because we agree with the administrative judge that the

appellant failed to meet her initial burden, the administrative judge’s reliance on

a now-obsolete legal standard does not affect the result in this case.

After the initial decision was issued, we also clarified the proper analytic

framework for adjudicating claims of EEO retaliation. Claims of retaliation for

engaging in activity protected by Title VII or the Age Discrimination in

Employment Act are analyzed under the motivating factor standard. Pridgen,

2022 MSPB 31, ¶¶ 20-22. However, an appellant claiming retaliation for

engaging in activity protected by the Rehabilitation Act must show that retaliation

was a “but-for” cause of the agency’s action. Desjardin v. U.S. Postal Service,

2023 MSPB 31, ¶ 44-47. The “but-for” standard is more stringent than the

motivating factor standard. Desjardin, 2023 MSPB 6, ¶ 31; Pridgen, 2022 MSPB

31, ¶ 47.

It appears that the appellant’s prior EEO activity was her participation as a

witness in an EEO case filed by another employee at a different agency. IAF,

Tab 57 at 3. Whether we considered the appellant’s claim under the lesser

motivating factor standard or the more stringent “but-for” standard, we agree with

the administrative judge’s finding that the appellant failed to show that her

participation in the EEO process at another agency was a motivating factor in the

agency’s decision to remove her. 2

The appellant has not proven her affirmative defense of reasonable

accommodation disability discrimination.

An agency is required to make reasonable accommodation to the known

physical and mental limitations of an otherwise qualified individual with a

disability unless that agency can show that accommodation would cause an undue

hardship on its business operations. Miller v. Department of the Army,

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusions regarding the appellant’s disparate treatment disability discrimination or

EEO retaliation claims, it is unnecessary for us to address whether the appellant’s

disability or EEO activity was a “but-for” cause of the removal action. See Pridgen,

2022 MSPB 31, ¶¶ 20-25, 30.

121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). In order to establish

disability discrimination based on a failure to accommodate, and employee must

show that: (1) she is an individual with a disability, as defined by 29 C.F.R.

§ 1630.2(g); (2) she is a qualified individual with a disability, as defined by

29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable

accommodation. Miller, 121 M.S.P.R. 189, ¶ 13. It is undisputed that the

appellant is a qualified individual with a disability.

The appellant contends on review that the administrative judge erred by

finding that the agency provided her with a sign language interpreter on demand

and ultimately provided her with a full-time interpreter when she requested one,

beginning in May 2017 and continuing throughout the PIP. 3 PFR File, Tab 1

at 11-12, 14; ID at 19-21. The administrative judge based her finding on her

assessment of the witnesses’ credibility, to which we must defer absent

“sufficiently sound” reasons for not doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not proffered

sufficiently sound reasons here, and, thus, she has not shown that the agency

failed to provide adequate interpreter assistance as a reasonable accommodation.

We have considered the appellant’s remaining arguments raised in her

petition for review, and we discern no basis to disturb the findings in the initial

decision. We therefore deny the petition for review and affirm the initial decision

as modified herein.

Similarly, the appellant’s argument that the agency delayed in providing her with a

video ASL translation of the TRMI does not show that it denied her a reasonable

accommodation because the translation video was provided to her prior to the start of

the PIP. PFR File, Tab 1 at 12-13; IAF, Tab 21 at 53; HR 1 (testimony of the Travel

Office Lead).

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the