The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MYRA PAULUS, DOCKET NUMBER
Appellant, PH-0432-19-0432-I-2
v.
DEPARTMENT OF LABOR, DATE: April 10, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sigmund J. Kozierachi , Sewell, New Jersey, for the appellant.
Richard T. Buchanan , Esquire, and Ryan C. Atkinson , Esquire,
Philadelphia, Pennsylvania, 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 her removal from Federal service for unacceptable performance pursuant
to chapter 43 and denied her affirmative defenses of disability discrimination and
military service discrimination under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). For the reasons discussed below,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
we GRANT the appellant’s petition for review. We AFFIRM the administrative
judge’s findings that the appellant failed to prove her affirmative defenses of
disability discrimination under the theory of failure to accommodate and
discrimination under USERRA. We VACATE the administrative judge’s finding
that the agency proved the elements of its performance-based removal action, and
we REMAND the appeal to the regional office for adjudication of the appellant’s
affirmative defenses of sexual harassment and retaliation for union and equal
employment opportunity (EEO) activity and further adjudication of the merits of
the removal action in accordance with this Remand Order.
BACKGROUND
The appellant, a former GS-9 Wage and Hour Investigator, was removed
from Federal service pursuant to chapter 43 after the agency determined that she
failed a 100-day performance improvement plan (PIP). Initial Appeal File (IAF),
Tab 5 at 15-21. She appealed her removal to the Board. IAF, Tab 1. On the
initial appeal form, the appellant asserted that her removal was the result of
discrimination based on “retired military service and her VA disability status.”
Id. at 4. After an opportunity to engage in discovery, both parties filed
prehearing submissions. IAF, Tab 15 at 1, Tabs 16-27. The appellant later
submitted a timely supplemental prehearing submission, which stated that she
wished to raise a claim of “unwelcome non-verbal and verbal prohibited
personnel sexual harassment.” Refiled Appeal File (RAF), Tab 40 at 4. The
administrative judge subsequently issued a prehearing conference order, which
noted that the appellant had raised two affirmative defenses—disability
discrimination (failure to accommodate) and military service discrimination under
USERRA—and advised the appellant of her burden of proof as to those defenses.
RAF, Tab 41 at 5-8. The order did not advise the appellant of the burden of proof
for a claim of sexual harassment. Id.
3
After a hearing, the administrative judge issued an initial decision finding
that the agency proved the elements for sustaining its chapter 43 action and that
the appellant failed to prove her affirmative defenses of failure to accommodate
and military service discrimination. RAF, Tab 51, Initial Decision (ID). The
appellant has filed a timely petition for review and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 5. 2
On review, the appellant asserts the following: (1) the administrative judge
made an erroneous factual finding regarding the date on which she was placed on
an informal PIP and failed to consider the documents and evidence she submitted
in support of her appeal, PFR File, Tab 1 at 4-5, 8; (2) the administrative judge
erred in finding that the agency proved that it warned the appellant of the
deficiencies in her performance before placing her on a PIP; (3) the
administrative judge erred in finding that the agency gave her a reasonable
opportunity to improve during the PIP period and that it provided her assistance
in achieving the PIP objectives, id. at 5-8; (4) the administrative judge erred in
denying her affirmative defenses of USERRA discrimination and failure to
accommodate, id. at 9-12, 15-19; and (5) the administrative judge did not
consider that the District Director engaged in harassing anti-union and anti-EEO
conduct and that the Assistant District Director sexually harassed her, id.
at 13-14.
DISCUSSION OF ARGUMENTS ON REVIEW
To defend an action under chapter 43, the agency must prove the following
by substantial evidence: (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
2
The appellant’s reply to the agency’s response to the petition for review was filed
about 3 weeks late with no good cause shown. PFR File, Tabs 4-6. Thus, we have not
considered it in reaching our decision.
4
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. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 15. On
review, the appellant does not dispute that the agency proved elements one
through four and six, and we find no reason to disturb the administrative judge’s
findings as to those elements. ID at 16-18.
Regarding the appellant’s argument that the administrative judge made an
erroneous factual finding about the date on which she was placed on an informal
PIP, we find that even accepting as true the appellant’s assertion that she received
the informal PIP in June 2018, rather than in May 2018, as the administrative
judge found, ID at 3, the appellant was on notice that the agency believed her
performance was unacceptable for at least 3 months before being placed on the
formal PIP in September 2018. To the extent the appellant argues that the notice
was deficient because the informal PIP did not reference the critical elements of
her position, PFR File, Tab 1 at 6, the U.S. Court of Appeals for the Federal
Circuit has explained that “[p]erformance failures can be documented or
established in any number of ways,” and noted that it prescribed no specific
evidentiary showing with respect to demonstrating that an appellant’s pre-PIP
performance was deficient, Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021). We find that the informal
PIP and the August 3, 2018 counseling memorandum put the appellant on notice
that the agency believed her performance was deficient prior to her placement on
the September 2018 PIP. IAF, Tab 6 at 23-24, 27-28.
The appellant has argued on review that she was denied a reasonable
opportunity to improve her performance, in part, because the Assistant District
Director and the District Director harassed her. PFR File, Tab 1 at 9-14.
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Specifically, she claims that the Assistant District Director sexually harassed her
and the District Director retaliated against her for her union and EEO activity. Id.
at 13-14. The appellant timely raised these defenses prior to the prehearing
conference, but she did not receive notice as to her burden of proof or the
evidence required to prove these affirmative defenses and the administrative
judge did not address them in the initial decision. 3 IAF, Tab 17 at 76-81, Tab 18
at 94-95; RAF, Tab 40 at 4-7. Accordingly, we must remand this appeal for the
administrative judge to inform the appellant of her burden of proof and to
explicitly advise her of the kind of evidence that is required to meet her burden as
to these defenses. See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶¶ 12-13
(2010), overruled on other grounds by Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶ 17; Erkins v. U.S. Postal Service, 108 M.S.P.R. 367, ¶ 11
(2008). Because the appellant’s claims of harassment are intertwined with the
question of whether the appellant had a reasonable opportunity to improve her
performance during the PIP period, we instruct the administrative judge to
include in the remand initial decision a new analysis pertaining to this element of
the agency’s removal action, taking into consideration any additional evidence
that is developed on remand.
The appellant has also alleged, without detail or explanation, that she filed
a whistleblower complaint. IAF, Tab 17 at 9. To the extent the appellant is
referring to her sexual harassment complaint and/or her EEO activity, the Board
has held that reprisal for filing an EEO complaint is not protected by 5 U.S.C.
3
Insofar as the administrative judge considered broadly the appellant’s allegation that
she was subjected to a hostile work environment, ID at 19, it does not appear that he
explicitly considered claims of retaliatory hostile work environment or sexual
harassment. Additionally, the basis of the appellant’s alleged EEO activity is not clear
from the record. It appears that she may have participated in an EEO investigation as a
witness, IAF, Tab 17 at 57, and, separately, she communicated with the EEO office
regarding reasonable accommodation requests, id. at 119. On remand, the
administrative judge should clarify the basis of the appellant’s EEO retaliation claim
and give the appropriate notice. See Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 43-48 (explaining the different standards for retaliation claims
brought under Title VII and the Rehabilitation Act).
6
§ 2302(b)(8). Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-17.
However, because the record lacks detail as to the alleged whistleblower
complaint, we instruct the administrative judge to give jurisdictional notice as to
a potential whistleblower reprisal affirmative defense upon clarifying that the
appellant intends to raise such a claim.
For the reasons set forth in the initial decision, we agree with the
administrative judge’s findings that the appellant failed to prove her affirmative
defenses of military service discrimination and failure to accommodate.
ID at 13-15, 19-21. The appellant’s arguments in her petition for review
regarding these affirmative defenses merely reiterate arguments that were already
raised before the administrative judge and provide no basis to disturb his
findings.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. The
administrative judge shall inform the appellant of her burden of proof on the
affirmative defenses of sexual harassment and retaliation based on union and EEO
activity and explicitly advise her of the kind of evidence that is required to meet
her burden. The administrative judge shall also clarify whether the appellant
intends to raise a whistleblower retaliation affirmative defense, and if so, he shall
take appropriate action as described above. The administrative judge shall afford
the parties an opportunity for discovery and a supplemental hearing on these
additional affirmative defenses if the appellant requests one. The administrative
judge must give appropriate consideration to any additional evidence developed
on remand and consider its effect, if any, on whether the agency has met its
burden to prove that it afforded the appellant a reasonable opportunity to improve
her performance. If the argument or evidence raised on remand affects the
administrative judge’s analysis as to any other element of the underlying removal
7
action, the administrative judge should make explicit findings regarding the same.
The administrative judge must then issue a new initial decision addressing each of
these issues. In the remand initial decision, the administrative judge may
reincorporate prior findings as appropriate, consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.