Nancy Cintron v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NANCY CINTRON, DOCKET NUMBER

Appellant, AT-0752-17-0078-I-1

v.

DEPARTMENT OF DEFENSE, DATE: April 2, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Ed Passman , Esquire, and Kevin L. Owen , Esquire, Silver Spring,

Maryland, for the appellant.

Nicole Davis , Esquire, Washington, D.C., for the appellant.

Melissa Martinez , Esquire, and John Schettler Chamblee , Esquire,

Peachtree City, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

affirmed the agency’s removal action. For the reasons discussed below, we

GRANT the appellant’s petition for review; AFFIRM the administrative judge’s

findings regarding the agency’s charges and the appellant’s claim of 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

origin discrimination; MODIFY the initial decision to find that the appellant did

not establish harmful procedural error; VACATE the administrative judge’s

findings on nexus, the penalty, and the appellant’s claims of retaliation for equal

employment opportunity (EEO) and union activities; and REMAND the case to

the regional office for further adjudication in accordance with this Remand Order.

BACKGROUND

The appellant was a second grade teacher at Brittin Elementary School, an

elementary school for children of military members and certain civilian

employees. Initial Appeal File (IAF), Tab 8 at 7, 73. By letter dated

January 28, 2016, the agency notified the appellant that her performance under

Critical Element 1 of her performance plan was unacceptable and that she was

being placed on a 60-day performance improvement plan (PIP). IAF, Tab 13 at

69-80. In May 2016, the appellant’s performance under Critical Element 1 for

school year 2015-2016 was rated “Unacceptable.” Id. at 12. On July 27, 2016,

the agency proposed her removal under chapter 75 of title 5 of the United States

Code based on the following four charges: (1) unacceptable performance;

(2) failure to properly supervise students; (3) failure to follow posted lesson plan;

and (4) inappropriate interactions with students. IAF, Tab 8 at 35-51. Charge 1

was based on the appellant’s alleged unacceptable performance under Critical

Element 1 of her performance plan. Id. at 35-47. The deciding official sustained

the proposed removal effective September 30, 2016. Id. at 69-71. The appellant

subsequently filed an appeal in which she alleged, inter alia, that the agency

committed harmful procedural error, discriminated against her on the basis of her

national origin, and retaliated against her for her protected EEO and union

activities. IAF, Tab 1 at 7.

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

sustaining the appellant’s removal. IAF, Tab 37, Initial Decision (ID). The

administrative judge found that the agency proved each of its four charges by

3

preponderant evidence. ID at 4-36. The administrative judge then considered the

appellant’s affirmative defenses and found that she failed to establish that her

removal was the product of discrimination based on national origin or retaliation

for having been involved in EEO and union activities. ID at 36-38. In addition,

the administrative judge found that the agency established the nexus requirement

and that the penalty of removal was reasonable under the circumstances. ID

at 38-40.

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

File, Tab 3. The agency has filed a response to the appellant’s petition. PFR

File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant alleges that the administrative judge applied the

incorrect standard for determining if the agency retaliated against her for her

union activity. PFR File, Tab 3 at 6-11. In addition, the appellant contends that,

regardless of whether the administrative judge applied the correct standard to this

claim, the administrative judge erred in failing to address record and testimonial

evidence relating to this allegation. 2 Id. at 11-23. The appellant also asserts that

the administrative judge failed to properly adjudicate her affirmative defense of

reprisal for protected EEO activity. Id. at 23-25. In addition, the appellant

alleges that the administrative judge failed to make sufficient findings regarding

her allegation of harmful procedural error. Id. at 25-29. As set forth below, we

find that a remand is necessary for further adjudication of the appellant’s

retaliation claims.

The agency met its burden of proving its charges.

As previously noted, under Charge 1, the agency charged the appellant with

unacceptable performance. IAF, Tab 8 at 35. The administrative judge found

that the agency proved all five specifications that were sustained by the deciding

2

Because we agree that the administrative judge applied the incorrect standard to the

appellant’s claim of reprisal for union activity, we need not address this argument.

4

official under this charge. 3 ID at 4-28; IAF, Tab 8 at 35-47, 69. Under each

specification, the agency charged the appellant with failing to meet a different

performance “substandard” under Critical Element 1 of her performance

standards. IAF, Tab 8 at 35-47. On review, the appellant offers no basis for

revisiting the administrative judge’s well-founded conclusions concerning this

charge. Because the record reflects that the administrative judge considered the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions, we affirm the administrative judge’s findings regarding Charge 1.

See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no

reason to disturb the administrative judge’s findings where she considered the

evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

Similarly, the administrative judge found that the agency proved Charge 2

—failure to properly supervise students—which had one underlying specification.

ID at 28-29; IAF, Tab 8 at 47. Under the specification, the agency charged the

appellant with leaving her students unattended in her classroom while she was

speaking to another teacher in the hallway. IAF, Tab 8 at 47. We discern no

basis for disturbing the administrative judge’s determination that the agency

established this specification—and thus the charge—through

documentary evidence and live testimony. See Crosby, 74 M.S.P.R. at 105-06;

Broughton, 33 M.S.P.R. at 359.

As for Charge 3, failure to follow the appellant’s posted lesson plan, the

administrative judge found that the agency established two specifications

3

The agency initially charged the appellant with six instances of misconduct under

Charge 1. IAF, Tab 8 at 35-47. Specifically, under Specification 2, the agency charged

the appellant with failing to meet Critical Element 1, Substandard (c) of her

performance plan. Id. at 36-38. Under a separate specification also listed as

Specification 2, the agency charged the appellant with unacceptable performance under

Critical Element 1, Substandard (d) of her performance plan. Id. at 38-39. The

deciding official did not sustain the second Specification 2; thus, the administrative

judge properly did not consider that specification. Id. at 69; ID at 4.

5

underlying the charge. ID at 30-31. Under this charge, the agency charged the

appellant with failing, on six different dates, to follow a scheduled time for a

specific classroom activity. IAF, Tab 8 at 47-49. The administrative judge found

that the deciding official only sustained two of the specifications and that the

agency proved these specifications by preponderant evidence. ID at 30-31.

Again, the appellant has provided nothing on review that would require us to

revisit the administrative judge’s findings that the agency proved these two

specifications, and accordingly, the charge. 4

Finally, the administrative judge also found that the agency proved Charge

4, inappropriate interactions with students. ID at 32-36. Under the specifications

in support of the charge, the agency charged the appellant with making negative

comments to students that, in certain instances, allegedly embarrassed students.

IAF, Tab 8 at 49-50. The administrative judge found that the agency established

two out of the three specifications listed in support of the charge and, thus, that it

proved its charge. ID at 32-36; see Burroughs v. Department of the Army,

918 F.2d 170, 172 (Fed. Cir. 1990) (holding that “proof of one or more, but not

all, of the supporting specifications is sufficient to sustain the charge”). The

administrative judge’s finding that the agency proved Charge 4 was based in part

on credibility determinations. ID at 35-36. The Board must give deference to an

administrative judge’s credibility determinations when they are based, explicitly

4

The administrative judge found, based on the deciding official’s testimony, that the

deciding official sustained only two of the specifications underlying Charge 3 because

the others concerned math. ID at 29-30. However, the decision letter states that all six

specifications under Charge 3 were sustained by the deciding official. IAF, Tab 8 at 69.

The deciding official did note in the decision letter that observations relating to math

were not considered in deciding the penalty. Id. at 70. To the extent the administrative

judge erred by not considering the other four specifications underlying the charge, any

such error did not prejudice the appellant’s substantive rights . Panter v. Department of

the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is

not prejudicial to a party's substantive rights provides no basis for reversal of an initial

decision). Specifically, because “proof of one or more, but not all, of the supporting

specifications is sufficient to sustain the charge,” Charge 3 can nonetheless be sustained

based on the specifications that the administrative judge did consider and uphold.

See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990).

6

or implicitly, on the observation of the demeanor of witnesses testifying at a

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 provided a basis for

disturbing the administrative judge’s credibility determinations or other findings

regarding the two sustained specifications under Charge 4.

Accordingly, we affirm the administrative judge’s finding that the agency

established its four charges.

The appellant has not established harmful procedural error.

As previously noted, the appellant alleges on review that the administrative

judge failed to adequately address her allegation of harmful procedural error.

PFR File, Tab 3 at 25-26. The appellant asserts that the agency violated the

applicable collective bargaining agreement (CBA) by failing to give her a

reasonable opportunity to improve her performance prior to her removal. 5 Id.

at 25.

The administrative judge recognized that the appellant raised this

affirmative defense in an order and summary of prehearing conference. IAF,

Tab 31 at 8. The administrative judge properly advised the parties in the order

that, to establish harmful procedural error, the appellant must establish that the

procedural error was likely to have caused the agency to reach a conclusion

different from the one it would have reached in the absence or cure of the error.

Id.; Doe v. Department of Justice, 123 M.S.P.R. 90, ¶ 7 (2015).

The administrative judge, however, does not appear to have analyzed this

allegation as a harmful error claim in the initial decision. Rather, the

administrative judge appears to have considered it in analyzing whether the

5

The applicable CBA states that, “[i]n those instances where improvement is necessary,

the [a]gency shall provide assistance to improve unacceptable performance prior to

proposing any performance-based action.” IAF, Tab 8 at 21. The CBA requires, among

other things, that the agency provide the employee with “a reasonable opportunity to

improve performance.” Id.

7

agency established its charge of unacceptable performance. ID at 27. The

administrative judge considered the appellant’s arguments that the principal of

Brittin Elementary School, who supervised the appellant during her PIP, only

criticized her, never told her how to improve, and was disruptive during the

classroom. ID at 27. After carefully considering the record, the administrative

judge found these assertions to be unsupported. Id. Among other things, the

administrative judge noted that the principal tried to help the appellant improve

her performance by giving her written notes from her observations and meeting

with her to discuss them. Id. The administrative judge also noted that the

principal arranged for specialists from the school to work with the appellant and

provide her with additional training. Id.

We therefore find that the administrative judge addressed the appellant’s

allegation that the agency did not provide her with a reasonable opportunity to

improve, and we discern no reason for disturbing the administrative judge’s

findings on this issue. To the extent the administrative judge erred in considering

this issue in analyzing Charge 1 rather than as an allegation of harmful procedural

error, any such error did not prejudice the appellant’s substantive rights because

the administrative judge apprised the appellant on how to establish such an

affirmative defense and the appellant failed to meet her burden of proof on this

claim. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(finding that an adjudicatory error that is not prejudicial to a party's substantive

rights provides no basis for reversal of an initial decision). Because the

administrative judge did not explicitly consider this allegation under the

analytical framework that is applicable to harmful procedural error claims, we

modify the initial decision to find that the appellant failed to establish any such

claim of harmful procedural error.

8

Remand is necessary for adjudication of the appellant’s allegation of reprisal for

having engaged in union activity.

The administrative judge applied a general reprisal standard in the initial

decision when analyzing the appellant’s allegation that the agency retaliated

against her for her protected union activity. 6 ID at 37-38. However, such a

standard is inapplicable to claims, like the one here, that allege reprisal for

participation in union-related activities under 5 U.S.C. § 2302(b)(9)(B).

See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 9-11 (2015). Section

2302(b)(9)(B) makes it unlawful for an individual to take, fail to take, or threaten

to take or fail to take a personnel action because of the employee “testifying for

or otherwise lawfully assisting any individual in the exercise of any right referred

to in [5 U.S.C. § 2302(b)(9)(A)] (i) or (ii).” Performing union-related duties are

protected activities under section 2302(b)(9). Alarid, 122 M.S.P.R. 600, ¶ 10.

Under such circumstances, this reprisal claim should be analyzed under the

burden-shifting standards set forth in section 1221(e). Id., ¶ 12.

We therefore vacate the administrative judge’s findings regarding the

appellant’s allegation of reprisal for union activity. Upon remand, the

administrative judge should apprise the appellant of her burden of proof on this

claim, afford the parties an opportunity to conduct discovery on the issue, and

hold a supplemental hearing if requested. The administrative judge must first

determine whether the appellant established that she engaged in such protected

activity, then consider whether that activity was a contributing factor in the

removal at issue in this appeal. Id., ¶ 13. If the appellant establishes those

factors by preponderant evidence, then the administrative judge must consider

whether the agency met its burden by clear and convincing evidence that it would

have taken the same action in the absence of the appellant’s protected activity.

Id., ¶ 14.

6

The administrative judge also provided the appellant with the incorrect standard on

this claim, and on the appellant’s allegation of reprisal for prior EEO activity, in an

order and summary of prehearing conference. IAF, Tab 31 at 8.

9

The administrative judge applied the incorrect standard to the appellant’s

allegation of retaliation for protected EEO activity.

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

framework for adjudication of discrimination claims and claims of retaliation for

protected EEO activity. Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶¶ 21-25, 30. Under Pridgen, the appellant bears the initial

burden of proving by preponderant that the prohibited consideration was a

motivating factor in the agency's action. Id., ¶¶ 21, 30. Here, in considering the

appellant’s allegation of reprisal for protected EEO activity, the administrative

judge applied a general reprisal standard. ID at 37. The use of this standard was

in error. See id., ¶ 32. 7

Thus, we vacate the administrative judge’s findings on the appellant’s

allegation of reprisal for protected EEO activity. On remand, the administrative

judge should instruct the parties of the standards of proof applicable to a claim of

EEO reprisal and provide them with an opportunity to further develop the

evidence on this issue. The administrative judge’s new decision should

incorporate the correct standard for analyzing the appellant’s allegation of

reprisal for EEO activity. In the new initial decision, if the appellant fails to

prove her affirmative defenses of reprisal for EEO and union activities, than the

administrative judge may adopt her original findings regarding nexus and the

penalty. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 11 (2016).

7

Regarding the appellant’s affirmative defense of national origin discrimination, the

administrative judge considered the evidence as a whole in finding that the appellant

failed to show that discrimination was a motivating factor in her removal. Because we

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

conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to

address whether discrimination or retaliation was a but-for cause of the removal action.

See Pridgen, 2022 MSPB 31, ¶¶ 20-25.

10

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.