The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM G. SANDERSON, DOCKET NUMBER
Appellant, DC-0432-17-0704-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 16, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Andrew Hass , 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 his removal for unacceptable performance under 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 office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
Effective July 18, 2017, the agency removed the appellant, a GS-13
Program Analyst, from Federal service for unacceptable performance following
his unsuccessful completion of a Performance Improvement Plan (PIP). Initial
Appeal File (IAF), Tab 6 at 49-51, 59. The appellant timely appealed his removal
to the Board. IAF, Tab 1. Although the appellant initially requested a hearing,
id. at 2, he later withdrew his hearing request, and the appeal was decided on the
written record, IAF, Tab 29, Initial Decision (ID) at 1. In an initial decision, the
administrative judge affirmed the appellant’s removal, finding that the agency
met its burden to prove the elements of a chapter 43 action and that the appellant
failed to prove his affirmative defenses of whistleblower reprisal, age
discrimination, and retaliation for prior equal employment opportunity (EEO)
activity. ID at 1-21. 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 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
When the initial decision was issued, the Board’s case law stated that, in
an appeal of a performance-based removal under chapter 43, the agency was
required to prove the following elements by substantial evidence: (1) the Office
of Personnel Management (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 the
appellant of the inadequacies of his performance during the appraisal period and
gave him an adequate opportunity to demonstrate acceptable performance; and
(5) after an adequate improvement period, his performance remained
unacceptable in at least one critical element. Lee v. Department of Veterans
3
Affairs, 2022 MSPB 11, ¶ 13. The administrative judge found that the agency
proved each element by substantial evidence. ID at 6-13.
On review, the appellant reiterates many of the same arguments that
he raised before the administrative judge, and he has challenged the
administrative judge’s findings with respect to elements 1, 3, and 4. PFR File,
Tabs 1, 4. The appellant argues that, although OPM approved the agency’s
written performance appraisal system, it did not approve the PIP, which he
alleges contains substantially different tasks than his written performance plan.
PFR File, Tab 4 at 4-5. In this regard, he argues that the agency improperly
changed his performance standards to low-level clerical duties with rigid
requirements and short deadlines under the PIP, allegedly rendering the standards
invalid. PFR File, Tab 1 at 13-17. The appellant also argues that the agency did
not provide him a reasonable opportunity to demonstrate acceptable performance
because he was not in a duty status for a majority of the PIP period and the
agency substantially changed his working environment, including a new
supervisor, change in work location, loss of telework privileges, and the new
tasks required of him under the PIP. Id. at 17-19. Finally, he asserts that the
agency placed him on a PIP in bad faith with a “predetermination” that he would
fail. Id. at 12-14.
We agree with the administrative judge’s finding that OPM approved the
agency’s performance appraisal system. ID at 7. The appellant has provided no
support for his assertion that OPM must approve an individual’s PIP, and we are
aware of none. PFR File, Tab 4 at 4-5. We also agree with the administrative
judge’s finding that the PIP tasks aligned with the appellant’s position description
and that his performance standards were valid. ID at 10. Regarding the
appellant’s argument that he was not given a reasonable opportunity to improve
his performance under the PIP, we agree with the administrative judge that, under
the circumstances, the agency gave the appellant a reasonable opportunity to
improve. ID at 11-12. The appellant has not challenged, and we find no reason
4
to disturb, the administrative judge’s findings as to the second and fifth elements.
ID at 8, 12-13.
Notwithstanding, remand is required for a different reason. While this case
was pending on review, the U.S. Court of Appeals for the Federal Circuit
recognized for the first time that an agency must prove an additional element to
support an adverse action charge under chapter 43. Santos v. National
Aeronautics and Space Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021).
Specifically, the agency “must justify institution of a PIP” by proving the
employee’s performance was unacceptable before the PIP. Id. at 1360; Lee,
2022 MSPB 11, ¶ 14. The holding applies to all pending cases, regardless of
when the events took place. Lee, 2022 MSPB 11, ¶ 16. Although the record
contains some evidence concerning 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. 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. The administrative judge shall then
issue a new decision consistent with Santos. See id., ¶ 17. If the agency makes
the additional showing required under Santos on remand, the administrative judge
may incorporate his prior findings on the other elements of the agency’s case in
the remand initial decision. See id.
On review, the appellant has also challenged the administrative judge’s
weighing of the evidence with respect to his age discrimination and EEO
retaliation claims. PFR File, Tab 1 at 20. We find no basis to disturb the
administrative judge’s well-reasoned findings that the appellant failed to prove
that his age or EEO activity were a motivating factor in the agency’s decision to
5
remove him. 2 ID at 13-16; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
106 (1997) (holding that the Board will not disturb an administrative judge’s
findings when he considered the evidence as a whole, drew appropriate
references, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
To the extent the appellant wishes to introduce evidence and argument concerning
his age discrimination claim and EEO retaliation claim as it relates to his pre-PIP
performance, the administrative judge shall allow the parties to submit such
evidence on remand and hold a supplemental hearing, if appropriate. In the
remand initial decision, the administrative judge shall explain if any new
argument or evidence affects the findings contained in the initial decision. As
appropriate, he may adopt his findings from the initial decision.
The appellant has also challenged the administrative judge’s findings
concerning his whistleblower reprisal affirmative defense. PFR File, Tab 1
at 20-21. Contrary to the appellant’s assertion on review, we find that the
administrative judge applied the correct legal standard when evaluating this
claim. ID at 17-21. The appellant’s remaining arguments constitute mere
disagreement with the administrative judge’s weighing of the evidence, and we do
not find them persuasive. PFR File, Tab 1 at 20-21; see Crosby, 74 M.S.P.R.
at 106; Broughton, 33 M.S.P.R. at 359. To the extent the appellant wishes to
introduce evidence and argument concerning his whistleblower retaliation defense
as it relates to his pre-PIP performance, the administrative judge shall accept such
evidence from the parties on remand and hold a supplemental hearing, if
appropriate. In the remand initial decision, the administrative judge shall explain
if any new argument or evidence affects the findings contained in the initial
decision. As appropriate, he may adopt his findings from the initial decision.
2
Since the issuance of the initial decision, the Board issued its decision in Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30-33, which clarified the
evidentiary standards and burdens of proof for age discrimination and EEO retaliation
claims arising under Title VII. Pridgen does not require a different result.
6
ORDER
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.