The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA KANE DERR, DOCKET NUMBER
Appellant, DC-0432-17-0511-I-1
v.
DEPARTMENT OF COMMERCE, DATE: March 12, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Patricia Kane Derr , Reston, Virginia, pro se.
David Crane , Esquire, 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 her removal 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 case to the Washington 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant served as a GS-14 Program Management Analyst in the
agency’s Office of Inspector General. Initial Appeal File (IAF), Tab 4 at 15. In
this position, her performance plan was comprised of five critical elements,
consisting of the following: (1) customer service, (2) communications,
(3) planning, (4) field work, and (5) reporting results. IAF, Tab 5 at 94-110. Her
performance was rated on a five-tier scale, with level 1 being the lowest level and
level 5 being the highest. Id. In November 2015, the agency provided the
appellant with a copy of the critical elements and performance standards by which
she would be evaluated during the appraisal period from October 1, 2015, to
September 30, 2016. Id. at 92-110.
On June 23, 2016, the appellant’s first-level supervisor issued her a
notification of unacceptable performance and an opportunity to improve, more
commonly known as a performance improvement plan or PIP. Id. at 4-14. Her
supervisor stated that the appellant’s performance did not meet the marginal level
(level 2) of performance in critical element 1 (customer service), critical
element 2 (communications), and critical element 4 (field work), and provided
specific examples of her deficiencies under each element. Id. at 4-6, 7-9, 10-11.
The agency prorated the appellant’s performance standards for the time period of
the PIP and informed her of what she was required to do under each critical
element to meet the marginal level of performance. Id. at 6-7, 9-10, 11-13. The
appellant was afforded 90 days, beginning on June 23, 2016, and ending on
September 21, 2016, to improve her performance to at least the marginal level.
Id. at 14. Due to the appellant’s absences during that period, and at her request,
the PIP was extended until October 6, 2016. IAF, Tab 4 at 26.
On December 1, 2016, the appellant’s first-level supervisor proposed her
removal for unacceptable performance. Id. at 26-30. She found that the appellant
failed to achieve at least the marginal level of performance in critical element 2
(communications) and critical element 4 (field work). Id. at 26-29. On April 6,
3
2017, after considering the appellant’s reply to the proposal, the appellant’s
second-level supervisor issued a decision imposing the removal. Id. at 16-25.
The appellant filed the instant appeal challenging the removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative judge
issued an initial decision in which he affirmed her removal. IAF, Tab 78, Initial
Decision (ID). He found that the agency proved the charge of unacceptable
performance and that the appellant failed to prove her affirmative defenses of age
and sex discrimination, equal employment opportunity (EEO) retaliation,
whistleblower reprisal, or harmful procedural error. ID at 7-21.
The appellant has petitioned for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the appellant
argues that the administrative judge should have considered her performance prior
to the period when the agency placed her on a PIP. PFR File, Tab 1 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly concluded that, under the law in effect at the
time, the agency satisfied its burden to prove that the appellant’s performance
was unacceptable.
At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (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 her position; (3) the appellant’s performance standards
are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the
inadequacies in her performance during the appraisal period and gave her an
adequate opportunity to demonstrate acceptable performance; and (5) after an
adequate improvement period, the appellant’s performance remained unacceptable
in at least one critical element. Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 13; see 5 U.S.C. § 7701(c)(1)(A). The administrative judge
4
addressed each of these elements in turn and found that the agency carried its
burden with respect to all of them. ID at 7-16. These findings are supported by
the record, and the parties do not challenge them on review. See 5 C.F.R.
§ 1201.115 (“The Board normally will consider only issues raised in a timely
filed petition or cross petition for review.”). Accordingly, we decline to disturb
the administrative judge’s findings in this regard.
Remand is necessary to afford the parties an opportunity to provide evidence and
argument concerning whether the appellant’s placement on the PIP was proper.
After the initial decision in this case was issued, the U.S. Court of Appeals
for the Federal Circuit issued a precedential decision in Santos v. National
Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021), holding
that an agency must prove an additional element under chapter 43. Lee,
2022 MSPB 11, ¶ 14. Specifically, an agency must show by substantial evidence
that the appellant’s performance leading up to the PIP was unacceptable. Santos,
990 F.3d at 1360-61, 1363.
Following the issuance of Santos, the Board issued an Opinion and Order in
Lee, 2022 MSPB 11, ¶ 15, which incorporated this holding in Santos, setting forth
the agency’s burden of proof as follows: to defend an action under chapter 43,
the agency must prove by substantial evidence that: (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
her position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(c)(1); (4) the appellant’s performance during the appraisal period was
unacceptable in one or more critical elements; (5) the agency warned the
appellant of the inadequacies in her performance during the appraisal period and
gave her an adequate opportunity to demonstrate acceptable performance; and
(6) after an adequate improvement period, the appellant’s performance remained
unacceptable in at least one critical element.
5
Although the record contains evidence indicating that the appellant’s
performance was unacceptable prior to the initiation of the PIP, IAF, Tab 5 at 4,
Tab 6 at 65, we nevertheless must 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 Lee, 2022 MSPB 11, ¶¶ 15-17. On remand,
the administrative judge should accept argument and evidence on this issue and
hold a supplemental hearing, if appropriate. Id., ¶ 17. The administrative judge
should then issue a new initial decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate in the remand initial decision his prior
findings on the other elements of the agency’s case. See id.
On remand, the administrative judge should make new findings on the appellant’s
affirmative defenses.
The appellant presented claims of age and sex discrimination, EEO
retaliation, whistleblower reprisal, and harmful procedural error, which the
administrative judge found unproven. ID at 16-21. The parties do not challenge
the substance of this determination on review. 2
2
The appellant generally challenges the credibility of her first- and second-level
supervisors regarding the poor quality of her performance, including asserting that they
lied when they testified that they were unaware of her age and that the record contains
conflicting evidence regarding whether her performance was unacceptable. PFR File,
Tab 1 at 5-6. The administrative judge found that the appellant’s supervisors testified
credibly that the appellant’s performance was unacceptable while on the PIP. ID
at 13-16. Further, he found that the appellant presented no evidence that her age was a
factor in her removal. ID at 17. The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on observing
the demeanor of witnesses testifying at the hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not
offered such reasons here, and we therefore decline to overturn the administrative
judge’s credibility findings. To the extent that the appellant is arguing that the
administrative judge failed to specifically address the testimony and evidence she cites
on review, we are not persuaded. An administrative judge’s failure to mention all of the
evidence does not mean that he did not consider it in reaching his decision. Kingsley v.
6
Nonetheless, on remand, the administrative judge must further adjudicate
these claims. The Board must consider an appellant’s pre-PIP performance in the
context of an affirmative defense when, as here, the validity of the agency’s
proffered reason for taking the performance-based action is a factor in analyzing
that claim. Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 25 (citing
Santos, 990 F.3d at 1363-64). Further, in the period since the administrative
judge issued his initial decision, we clarified the evidentiary standards and
burdens of proof for age discrimination and EEO reprisal claims in Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30-33. In the
proceedings on remand, the administrative judge should advise the parties of the
standards set forth in Pridgen, provide them with an opportunity to present
argument and evidence, and hold a supplemental hearing, if appropriate, on the
appellant’s affirmative defenses to permit the parties to address those standards,
as well as any claims regarding the appellant’s pre-PIP performance. 3 He should
then apply the standards set forth in Pridgen in the remand initial decision.
The parties do not dispute the administrative judge’s findings on the
appellant’s remaining affirmative defenses of harmful error and whistleblower
U.S. Postal Service, 123 M.S.P.R. 365, ¶ 15 (2016).
3
The appellant argues that distractions in the hearing room prevented her from
presenting testimony concerning her affirmative defenses. PFR File, Tab 1 at 5-6. To
the extent the appellant is arguing that her decision not to testify about age and sex
discrimination was due to an abuse of discretion, we find no support for such a claim.
See Reid v. U.S. Postal Service, 54 M.S.P.R. 648, 655 (1992) (finding no abuse of
discretion in limiting an appellant’s testimony on cross-examination to issues raised on
direct examination when the appellant chose not to testify during the presentation of his
case). Moreover, the administrative judge approved the appellant as a witness and,
during the hearing, heard her testimony, confirmed she finished with her testimony, and
gave her the opportunity to provide additional testimony after the agency’s
cross-examination. IAF, Tab 77, Hearing Recording (testimony of the appellant). We
listened to the hearing recording and could not hear any interruptions in her testimony.
Id. Accordingly, although the appellant may regret her decision not to testify about age
and sex discrimination, she has not established any error on the part of the
administrative judge. Nonetheless, in light of this Remand Order, we leave the scope of
the appellant’s testimony at any supplemental hearing to the sound discretion of the
administrative judge.
7
reprisal. As to her whistleblower reprisal claim, the administrative judge
determined that the appellant failed to prove that her protected activity was a
contributing factor in her removal under the knowledge/timing test or otherwise.
ID at 18-21. As to her harmful error claim, the administrative judge concluded
that the appellant failed to identify any policy, rule, or regulation that the agency
violated in connection with her removal. ID at 21.
Because he will now be reviewing the agency’s determination that the
appellant’s pre-PIP performance was unacceptable, the administrative judge
should determine if the appellant was impeded during the proceedings below from
presenting her whistleblower reprisal and harmful error affirmative defenses to
the extent they concerned the period leading up to her placement on the PIP. If
so, he should permit the parties to present evidence and argument on these
matters. He should then make findings on her affirmative defenses that consider
any new evidence and argument. If there are none, the administrative judge may
adopt his prior findings as they concern the PIP and the appellant’s removal in the
remand initial decision.
The appellant’s remaining arguments do not warrant Board review.
Administrative Judge Bias
The appellant argues that the administrative judge was biased against her
because he ridiculed her settlement request during a prehearing conference.
PFR File, Tab 1 at 5. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions evidence “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). The appellant’s allegation neither overcomes
8
this presumption nor demonstrates any such favoritism or antagonism towards
her. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 19 (2016)
(finding that the agency did not demonstrate that the administrative judge was
biased when it argued that her “tone and substance” throughout the proceeding
were demeaning to agency counsel).
Discovery, Witnesses, and Testimony
The appellant asserts that the administrative judge denied her discovery,
including allowing her to depose agency managers and others who likely
influenced her removal and harassed her, and the ability to obtain more audit
documentation that formed the basis for her removal or that would show how her
work was consistent or superior to comparable work done by younger or male
colleagues. PFR File, Tab 1 at 4. An administrative judge has broad discretion in
ruling on discovery matters, and absent an abuse of discretion, the Board will not
find reversible error in such rulings. Pridgen, 2022 MSPB 31, ¶ 71.
Because the appellant failed to initiate timely discovery, she filed a motion
for an extension of the deadline for doing so. IAF, Tab 11. The administrative
judge denied her motion. IAF, Tab 13 at 2-3. He reasoned that the
acknowledgment order advised the appellant of the requirement that she initiate
discovery within 30 days. IAF, Tab 2 at 3, Tab 13 at 2-3. He found that the
appellant’s general financial hardship was not a basis to find good cause for her
delay. IAF, Tab 13 at 2-3. Nor did the events she cited in requesting more time
serve as excuses because they took place prior to the issuance of the
acknowledgment order. Id. We agree that an appellant’s general financial
difficulties and events occurring before the discovery period began do not excuse
her failure to initiate discovery on time. Johnson v. Department of Veterans
Affairs, 64 M.S.P.R. 257, 259 (1994) (determining that financial difficulties do
not constitute good cause for waiver of the filing deadline), aff’d per curiam,
56 F.3d 81 (Fed. Cir. 1995) (Table). Therefore, we discern no abuse of discretion
by the administrative judge.
9
Next, the appellant argues that the administrative judge incorrectly denied
all but one of her requested witnesses. PFR File, Tab 1 at 5. The appellant failed
to object to that ruling below and is precluded from raising the issue on review.
Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). However, if the
administrative judge holds a supplemental hearing, the parties may make new
requests for witnesses regarding the appellant’s pre-PIP performance consistent
with the administrative judge’s orders. The administrative judge should make
findings whether to permit those witnesses to testify at any supplemental hearing.
Because we are vacating the initial decision and remanding for a new
hearing, we need not reach the appellant’s arguments that the administrative
judge improperly refused to admit documents regarding her past acceptable
performance and decades of experience before the agency placed her on the PIP.
PFR File, Tab 1 at 4. We also do not rule on the appellant’s argument that the
administrative judge did not consider all of the evidence and testimony. Id. at 5.
On remand, the appellant may request to submit evidence into the record
consistent with the orders of the administrative judge. We leave whether to
permit such evidence to the sound discretion of the administrative judge on
remand.
The appellant further argues that she was confused about certain terms,
such as retaliation, hostile work environment, and harassment. PFR File, Tab 1
at 5. It was incumbent on the administrative judge to advise the appellant of
applicable burdens of proving her affirmative defenses, as well as the kind of
evidence she is required to produce to meet her burden. Wynn v. U.S. Postal
Service, 115 M.S.P.R. 146, ¶¶ 10, 12-13 (2010), overruled on other grounds by
Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 17. Here, the administrative
judge advised the appellant of her burden of proof as to her affirmative defenses
and the kinds of evidence she was required to produce. IAF, Tab 10.
Accordingly, we find that there is no adjudicatory error.
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Other Arguments
The appellant argues that the administrative judge misspelled a witness’s
name and focused on his computer during the hearing. PFR File, Tab 1 at 5-6.
These assertions do not affect the disposition of a dispositive issue and thus do
not provide a reason for disturbing the initial decision. See, e.g., Stroud v.
Department of Veterans Affairs, 2022 MSPB 43, ¶ 2 n.1 (finding typographical
errors in the initial decision did not prejudice the appellant’s substantive rights
and therefore provided no basis for reversal of the initial decision); Catalano v.
U.S. Postal Service, 23 M.S.P.R. 432, 436 n.2 (1984) (finding that an appellant’s
allegation that the presiding official appeared bored and distracted at the hearing,
without more, did not overcome the presumption of integrity on the part of the
presiding official).
ORDER
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.