The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA J. SHANK, DOCKET NUMBER
Appellant, CH-0432-17-0451-I-2
v.
DEPARTMENT OF THE ARMY, DATE: April 26, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
C. Mike Moulton , Esquire, Elizabethtown, Kentucky, for the appellant.
Glenn Houston Parrish , Esquire, Fort Knox, Kentucky, 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
sustained her 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 appeal to the regional office for
further adjudication consistent with Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021), and the guidance 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant most recently held the position of Physician at the agency’s
Ireland Army Hospital in Fort Knox, Kentucky. Shank v. Department of the
Army, MSPB Docket No. CH-0432-17-0451-I-1, Initial Appeal File (IAF), Tab 1
at 1, 12; Shank v. Department of the Army, MSPB Docket No. CH-0432-17-0451-
I-2, Refiled Appeal File (RAF), Tab 25, Initial Decision (ID) at 1. 2 In October
2016, the agency rated her performance as failing. IAF, Tab 4 at 344-49. The
associated performance appraisal explained that while she had largely met or
exceeded other standards, the appellant consistently failed to meet one
performance objective. Id. at 345-46. Specifically, the appellant failed to
“[c]omplete all charting within 72 hrs of visit (codes correctly in accordance with
ICD-10).” Id. at 346. As further explained in the initial decision, ICD-10 is an
industry-wide diagnosis coding system. ID at 2-3; RAF, Tab 27, Hearing
Transcript (HT1) at 34 (testimony of appellant’s supervisor). The associated
performance objective was, in effect, both a timeliness and quality standard for
the documentation of a patient visit. The appellant was not responsible for
inputting a particular code; she was responsible for timely providing adequate
information for purposes of follow-up care and reimbursement from the likes of
Medicare or Tricare. ID at 2-3; HT1 at 13-19 (testimony of the appellant’s
supervisor).
Because of her failing performance rating, the agency placed the appellant
on a performance improvement plan (PIP). IAF, Tab 4 at 351-52. The PIP
singled out the aforementioned performance objective and recognized that the
appellant had a backlog of incomplete/unclosed patient charts totaling 239. Id.
at 351. In order to be minimally successful, the PIP indicated that the appellant
was required to do two things—adhere to the charting requirement and eliminate
her charting backlog. 3 Id. Rather than shrink over the next 5 weeks, the
appellant’s backlog grew to a total of 620. Id. at 351, 356-61. Nevertheless, in
2
There are two docket numbers associated with this one appeal because the
administrative judge dismissed the appeal without prejudice for automatic refiling at a
later date to accommodate discovery delays. IAF, Tab 31 at 1-3.
3
the final days of her PIP, the appellant closed all of those open encounters,
eliminating her backlog of incomplete charts. Id. at 362, 366.
The agency initially informed the appellant that she had successfully
completed the PIP. 4 Id. However, in doing so, the agency noted that it would
conduct a peer review to determine the appropriateness of her work. Id. at 366.
Following that peer review, the agency reversed course. Citing extensive
deficiencies in her charting for patient encounters, the agency determined that the
appellant had not successfully completed the PIP or achieved the required
improvements. E.g., id. at 372-73. To illustrate, a physician found that of
60 randomly chosen charts, half contained poor documentation of diagnosis and
treatment, id. at 400, and a nonphysician found that more than two-thirds of the
600+ charts reviewed did not contain adequate information for purposes of coding
and reimbursement, id. at 380-81.
In February 2017, the agency proposed the appellant’s removal for
unacceptable performance. IAF, Tab 1 at 12-15. In short, the agency alleged that
the appellant’s performance was unacceptable in the lone objective identified in
the PIP—completion of all charting within 72 hours of a patient visit in
accordance with ICD-10. Id. at 12-13. The agency later amended the proposal to
3
The specific language of the PIP described the required improvement as closing
patient charts within 72 hours and completing all delinquent charts within the PIP
period, but another bullet point provided as follows: “[f]ailure to close charts in
72 hours.” IAF, Tab 4 at 351. As the administrative judge recognized, it is apparent
that this last bullet point was a typographical error or some other mistaken inclusion in
the required improvement portion of the appellant’s PIP. ID at 10 n.9.
4
As the administrative judge also recognized, the date on the memorandum noting that
the appellant closed out all of her patient encounters before the PIP’s end contains a
typographical error, seemingly identifying both the incorrect day and year. See ID at 9
n.8; compare IAF, Tab 4 at 351 (original PIP documentation, indicating that the PIP
would begin on October 31, 2016, and end on December 19, 2016), 361 (memo dated
December 14, 2016, indicating that the appellant’s PIP had not yet ended and the
appellant still had 620 open encounters), with id. at 362 (memo dated December 12,
2015, indicating that the appellant’s PIP had ended and she had no open encounters
remaining), 366 (PIP final review certification, dated December 22, 2016). These
discrepancies do not warrant a different outcome.
4
account for additional documentation and a change in the deciding official. Id.
at 18-21. After the appellant responded, IAF, Tabs 14-18, 20, the deciding
official sustained the appellant’s removal, which became effective June 13, 2017,
IAF, Tab 1 at 23-26. This appeal followed. IAF, Tab 1.
The administrative judge developed the record and held the requested
hearing before sustaining the action. ID at 1-2. He found that the agency met its
burden of proving the elements required in a chapter 43 performance case such as
this. ID at 4-17. He further found that the appellant failed to prove the
affirmative defenses she raised—disability discrimination, sex discrimination,
reprisal for filing grievances, and harmful procedural error. ID at 17-32. The
appellant has filed a petition for review. Shank v. Department of the Army,
MSPB Docket No. CH-0432-17-0451-I-2, Petition for Review (PFR) File, Tab 1.
The agency has filed a response and the appellant has replied. PFR File,
Tabs 3-4.
The administrative judge properly found that the agency proved its chapter 43
removal action under pre- Santos law.
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance-based removal under chapter 43, the
agency must establish by substantial evidence 5 that: (1) the agency communicated
to the appellant the performance standards and critical elements of her position;
(2) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(3) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her an adequate opportunity to improve; and
(4) after an adequate improvement period, the appellant’s performance remained
unacceptable in at least one critical element. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 6 (2013). 6 On review, the appellant presents
arguments that implicate the first, second, and fourth elements of the agency’s
5
Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
5
burden, so we affirm the administrative judge’s findings regarding the remaining
elements and address the others below. PFR File, Tab 1 at 13-22.
Communication of standards
Concerning the first element of the agency’s burden—that it communicated
the performance standards and critical elements—the appellant argues that while
the agency did communicate performance standards to her, including the charting
requirements, it never identified the charting requirement or any other as a
critical element. Id. at 13-16. Among other things, she notes that the term
“critical element” is not included in her performance evaluations or other
documents, and asserts that she had never heard of the term until after the
conclusion of her PIP. Id. at 13-14. We are not persuaded.
A June 2016 performance evaluation plan, signed by the appellant, is
devoid of the term “critical element” but lists her “major performance
objectives/individual performance standards.” IAF, Tab 4 at 336-37. The first of
several items listed is to “[c]omplete all charting within 72 hrs of visit (codes
correctly in accordance with ICD-10).” Id. at 336. The accompanying materials
indicate that if an individual fails to do so at least 95% of the time, their
performance would be failing. Id. at 338. In a separate memorandum, similarly
signed by the appellant on the same date, the agency indicated that the appellant
was not meeting the charting standard. Id. at 340. The memorandum described
how the appellant acknowledged understanding the standard, but had fallen
behind, “plac[ing] patients’ health and safety at risk.” Id. It directed the
appellant to catch up on her charting backlog and adhere to the 72-hour rule going
forward, otherwise she may be subject to removal. Id.
In October 2016, the agency completed the appellant’s performance
evaluation. Id. at 344-47. That evaluation rated her overall performance as
6
Additionally, we note that the agency also has the burden of proving that the Office of
Personnel Management has approved its performance appraisal system and any
significant changes thereto, but only if the appellant raises such a challenge, which does
not appear to have occurred in this appeal. See Towne, 120 M.S.P.R. 239, ¶ 6 n.5.
6
unsuccessful, describing how she had consistently failed to meet the charting
standard, and indicating that she would be placed on a PIP for the same. Id.
at 345-46. This document was also signed by the appellant, as was the PIP that
followed. Id. at 344-47, 351-52. It appears that the PIP was the first document
that explicitly used the term, “critical element,” albeit without explicitly tying the
term to the charting standard. Id. at 351. The PIP once again identified the
appellant’s performance objective as “[c]omplet[ing] all charting within 72 hours
of visit (codes correctly in accordance with (ICD-10)).” Id. at 351-52. It, too,
warned that if she failed to achieve the results expected and required, the
appellant may be subject to removal. Id. at 352.
While the appellant would have us find that the repeated warnings we just
described were insufficient in the absence of the agency explicitly labeling the
charting standard with the term “critical element,” she has failed to identify any
such requirement and we are aware of none. See 5 C.F.R. § 430.203 (defining a
critical element as a work assignment or responsibility of such importance that
unacceptable performance on the element would result in a determination that an
employee’s overall performance is unacceptable). In fact, we have previously
approved of the agency’s use of the term “objective” in lieu of “critical element.”
Greer v. Department of the Army, 79 M.S.P.R. 477, 480 n.1 (1998) (recognizing
that the Department of the Army used the term “objectives” instead of “critical
elements” on an employee’s written performance standards and describing the
two terms as equivalent). We therefore find no merit to the appellant’s arguments
and instead agree with the administrative judge. ID at 5-7. The charting
requirement was a critical element and the agency met its burden of proving that
it communicated the same to the appellant.
Validity of standards
In order to be valid, an appellant’s performance standards must be
reasonable, realistic, attainable, reasonably objective, and tailored to the specific
requirements of the position. Towne, 120 M.S.P.R. 239, ¶¶ 21, 23. To the extent
7
that the appellant suggests that the administrative judge erred in concluding that
the agency’s performance standards were valid, PFR File, Tab 1 at 17-21, we find
her arguments unavailing.
The appellant first asserts that the agency has treated its charting standard
as a guideline, rather than a stringent requirement, as demonstrated by physicians
routinely exceeding the 72-hour allotment for completing a patient’s chart. Id.
at 17-18 (citing IAF, Tab 4 at 419-998). Setting aside her assumption that
inconsistent enforcement of a performance standard could invalidate the standard
or otherwise render her removal improper, the record does not reflect the
inconsistency the appellant suggests. As we previously recognized, the agency’s
performance standard did not require absolute adherence to the 72-hour rule; it
instead required adherence to the rule for at least 95% of patient encounters.
Supra, ¶ 9. In addition, while the record does show that others failed to meet the
72-hour standard to varying degrees, it further shows that the appellant’s failures
far exceeded that of all other providers. IAF, Tab 4 at 419-998. In fact, the
backlog of the one particular provider the appellant referred us to never exceeded
100 during the documented period, id. at 447-48, while the appellant’s routinely
exceeded 200, eventually peaking at more than 600, id. at 492, 521, 712, 741,
765, 791, 819, 846, 874, 900, 927, 959. Moreover, it is undisputed that the
provider to which she referred was also placed on a PIP for failing to meet the
charting requirements. RAF, Tab 6 at 22, 133-34. Accordingly, we are not
persuaded by the appellant’s arguments of inconsistency.
The appellant separately argues that the charting standard at issue in this
appeal is invalid because it is too vague and too subjective. PFR File, Tab 1
at 17-21. We disagree. 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 the standard. Henderson v. National
Aeronautics & Space Administration, 116 M.S.P.R. 96, ¶ 23 (2011). Instead, the
Board has explained that performance standards must be sufficiently precise and
8
specific as to invoke a general consensus as to their meaning and content and
provide firm benchmarks toward which the employee may aim her performance.
Id.
Once more, the standard at issue required that the appellant complete
charting within 72 hours of a patient’s visit, in accordance with ICD-10. While
the appellant has alluded to the mechanics of ICD-10 and the associated coding,
which was completed by a third party, as if those mechanics create ambiguity in
the performance standard or improperly held her responsible for someone else’s
actions, PFR File, Tab 1 at 17, 19-20, we are not persuaded. The administrative
judge found that the performance standard simply required that the appellant
timely complete a patient’s chart by providing adequate information, i.e., the
information necessary for both follow-up treatment and reimbursement by the
likes of Medicare or Tricare. ID at 2-3; see, e.g., HT1 at 13-19 (testimony of the
appellant’s supervisor). The appellant has failed to identify any basis for us to
conclude otherwise.
The appellant also asserts that because she was receiving feedback during
the PIP, and none of that feedback reflected negatively about the quality of her
charting, subsequent allegations of deficiencies in that regard demonstrate that
the standard is too subjective. PFR File, Tab 1 at 19-21. Again, we are not
persuaded. In essence, the appellant would have us fault agency officials for not
recognizing deficiencies in the substance of her charting during the PIP when it
was the appellant who effectively prevented the agency from doing so. As we
previously discussed, the appellant’s backlog of incomplete charts ballooned from
more than 200 at the start of the PIP to more than 600 with just a few days
remaining in the PIP, before the appellant eliminated her entire backlog at the
final hour. These actions insulated the appellant from complete reviews of those
600 cases during the PIP, leaving the agency unable to review them prior to the
PIP’s end. Accordingly, any absence in criticism about the substance of her
9
charting during the PIP appears to be attributable to the appellant, not excessively
subjective performance standards.
Performance remained unacceptable
As previously discussed, the agency initially informed the appellant that
she successfully completed the PIP by closing all open encounters before the
PIP’s end. IAF, Tab 4 at 362, 366. But in conveying that conclusion, the agency
noted that the appellant had not adhered to the schedule for eliminating her
backlog. Id. at 362. The agency also indicated that a peer review would follow
to verify the appropriateness of the appellant’s charting. Id. at 366. After that
peer review, the agency concluded that the appellant had failed the PIP. E.g., id.
at 372-73, 380-81, 400-01.
On review, the appellant points to a contradiction in the letter indicating
that she failed the PIP. PFR File, Tab 1 at 18. The first paragraph of the letter
states that the appellant failed the PIP, while the second paragraph states that she
successfully completed the PIP. IAF, Tab 4 at 373. The administrative judge
credited the agency’s explanation for that latter paragraph, i.e., that it was
inadvertently left in the second memoranda while cutting and pasting from the
first. ID at 14 n.10 (referencing HT1 at 105-06 (testimony of appellant’s
supervisor); compare IAF, Tab 4 at 362 (initial success letter, explaining how the
appellant had closed all open encounters by the PIP’s end), with id. at 373
(subsequent fail letter, including the mirror image paragraph). While the
appellant now argues that this explanation was not credible, PFR File, Tab 1
at 18-19, she has not presented any basis for us to disturb the administrative
judge’s conclusion to the contrary, see Haebe v. Department of Justice, 288 F.3d
1288, 1300-01 (Fed. Cir. 2002) (the Board will defer to the credibility
determinations of an administrative judge when they are based, explicitly or
implicitly, upon the observation of the demeanor of witnesses testifying at a
hearing because the administrative judge is in the best position to observe the
10
demeanor of the witnesses and determine which witnesses were testifying
credibly).
In concert with her bare assertion that the agency’s explanation for the
aforementioned contradiction is not credible, the appellant seems to suggest that
she had successfully completed at least a portion of the PIP by adhering to the
agency’s timeliness standard of closing charts within 72 hours of a patient’s visit.
PFR File, Tab 1 at 18. However, she has not identified any evidence of the same,
and the assertion cannot be reconciled with the well-documented ballooning of
her backlog during the PIP. See, e.g., IAF, Tab 4 at 351, 356-61, 948-59; HT1
at 104-05 (testimony of appellant’s supervisor). Moreover, the appellant
ultimately acknowledged that “the quality was poor” on the large number of
patient charts that she closed at the final hour of her PIP. IAF, Tab 14 at 5; RAF,
Tab 28, Hearing Transcript (HT2) at 329 (testimony of the appellant).
Accordingly, to the extent that the appellant disputes the administrative judge’s
conclusion that her performance remained unacceptable, we are not persuaded.
The record shows that the appellant failed to meet the agency’s standards, both in
terms of timeliness and quality. E.g., IAF, Tab 4 at 380-81, 400, 948-59.
Remand is required in light of Santos .
During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos, 990 F.3d at 1360-61, 1363, that,
in addition to the elements of the agency’s case set forth above, the agency must
also “justify the institution of the PIP” by proving by “substantial evidence that
the employee’s performance was unacceptable . . . before the PIP.” The Federal
Circuit’s decision in Santos applies to all pending cases, including this one,
regardless of when the events took place. Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 16. Accordingly, we 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 id., ¶¶ 15-17. On remand, the
11
administrative judge shall accept argument and evidence on this issue, and shall
hold a supplemental hearing if appropriate. Id., ¶ 17.
The appellant has not shown that the administrative judge abused his discretion in
ruling on discovery matters.
Below, the appellant submitted a motion to compel the production of
documents associated with a risk management assessment involving the
appellant’s treatment of a particular patient. IAF, Tab 23 at 4-10, 17. Although
her removal was not based on the assessment or treatment of any particular
patient, the appellant argued that the documents associated with the risk
management assessment were relevant, particularly because the two actions had
some overlap in time and she suspected that the agency was singling her out for
the assessment to exhibit discriminatory animus. Id. at 4-9. The agency objected
based on relevancy, but also on the basis that the documents were protected under
10 U.S.C. § 1102. IAF, Tab 23 at 17, Tab 24 at 4-11. That statute deems certain
medical quality assurance records confidential and privileged, authorizing
disclosure only in specifically delineated circumstances. 10 U.S.C. § 1102. The
administrative judge found that the records at issue were privileged under
section 1102 and, therefore, denied the appellant’s motion to compel. IAF,
Tab 26. The administrative judge did not base his ruling on the relevancy of the
documents or reach a conclusion concerning the same.
On review, the appellant argues that the denial of her motion to compel was
prejudicial to her case. PFR File, Tab 1 at 22-23. She refers back to the
argument from her motion to compel, while further describing how the requested
documents may have been relevant to the agency’s motive, her health, and her job
performance. Id. In other words, while the appellant’s petition reiterates why
she believes the requested records were relevant to her case, her petition fails to
address the administrative judge’s rationale for denying her motion to compel,
12
i.e., the applicability of 10 U.S.C. § 1102. 7 Accordingly, we discern no basis for
concluding that the administrative judge abused his discretion and we will not
address the matter further. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365,
¶ 16 (2016) (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); Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980)
(finding that, before the Board will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect and identify the specific evidence in the record which demonstrates the
error).
The appellant failed to establish her affirmative defense of disability
discrimination based on a failure to accommodate.
As previously mentioned, the appellant raised a number of affirmative
defenses below, but the administrative judge found that she did not prove any of
them. ID at 17-32. On review, the appellant has limited her substantive
arguments to ones concerning disability discrimination, so this decision will be
similarly focused. 8
The Rehabilitation Act requires an agency to provide reasonable
accommodation to the known physical or mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship on its business operations.
Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). With
7
In its response to the appellant’s petition for review, the agency argued that the
administrative judge properly applied the privilege at issue. PFR File, Tab 3 at 13-19.
Having failed to do so in her petition, the appellant then argued otherwise in her reply
brief. PFR File, Tab 4 at 11-14. We need not consider those arguments because the
Board’s regulations preclude a party from raising new allegations of error in their reply.
5 C.F.R. § 1201.114(a)(4). The agency’s response did not open the door for the
appellant to raise brand new arguments that she failed to raise in her petition for review.
8
The appellant also referred to reprisal, summarily asserting that she met her associated
burden of proof. PFR File, Tab 1 at 23, 25. However, in the absence of any substantive
argument, we will not address that claim further. Weaver, 2 M.S.P.R. at 133.
13
exceptions not applicable here, the term “qualified” means that the individual
satisfies the requisite skill, experience, education and other job-related
requirements of the employment position the individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such
position. 9 Id.; 29 C.F.R. § 1630.2(m). Reasonable accommodation includes
modifications to the manner in which a position is customarily performed in order
to enable a qualified individual with a disability to perform the essential job
functions, or reassigning the employee to a vacant position whose duties the
employee can perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
The administrative judge assumed that the appellant had a disability for the
purposes of his decision, but found that the appellant’s failure to accommodate
claim failed because the appellant never articulated a reasonable accommodation
that would permit her to perform the essential functions of her position. ID
at 18-22. Among other things, he noted that after the appellant’s attorney
included a vague reference to the Americans with Disabilities Act (ADA) in
response to the proposed removal, the agency responded by asking if the
appellant had a disability and needed a reasonable accommodation, but the
appellant failed to respond. ID at 20-21 (citing IAF, Tab 4 at 996; RAF, Tab 9
at 66).
On review, the appellant argues that while she may not have ever used the
term “accommodation” in discussions with the agency, the record showed that she
did request help, triggering the agency’s obligation to engage in the interactive
process. PFR File, Tab 1 at 23-24 (referencing HT2 (testimony of appellant’s
union representative)); see Clemens, 120 M.S.P.R. 616, ¶ 12 (recognizing that an
employee only has a general responsibility to inform her employer that she needs
accommodation for a medical condition, after which the employer must engage in
the interactive process to determine an appropriate accommodation). However,
9
The initial decision contains a typographical error regarding the pertinent regulations.
ID at 18 (citing 5 C.F.R. §§ 1630.2, 1630.9); see 29 C.F.R. §§ 1630.2, 1630.9.
14
even if we agreed that the appellant met her obligation to trigger the interactive
process, she has failed to explain how the agency failed to do its part. Again,
during the response period for her proposed removal, the agency specifically
asked if the appellant had a disability and needed an associated reasonable
accommodation. IAF, Tab 4 at 996. In doing so, the agency acknowledged that
the appellant’s response could result in her retention, rather than removal, via
reasonable accommodation. Id. Yet it seems that the appellant provided no
response. 10 Accordingly, we agree with the administrative judge; the appellant’s
failure to accommodate claim is unavailing. See Miller v. Department of the
Army, 121 M.S.P.R. 189, ¶ 15 (2014) (recognizing that both parties must engage
in the interactive process in good faith); Simpson v. U.S. Postal Service,
113 M.S.P.R. 346, ¶ 18 (2010) (finding that an employee did not prove the denial
of reasonable accommodation where he was unresponsive to the agency’s good
faith attempts to engage in the interactive process).
On remand, the administrative judge shall make new findings as to the appellant’s
disparate treatment disability discrimination claims.
After the administrative judge issued the initial decision, the Board
clarified the standards for a disability discrimination disparate treatment claim.
Specifically, we recognized that such claims are subject to a motivating factor
standard. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 40.
On remand, the administrative judge shall reconsider the appellant’s disparate
treatment disability discrimination claim under the recently-clarified legal
standard along with any additional evidence adduced.
10
In her reply, the appellant suggests that the agency erred by asking her attorney about
any potential disability or need for accommodation, rather than asking the appellant
herself. PFR File, Tab 4 at 14. Yet it was the appellant’s attorney who implicated the
Rehabilitation Act and advised, “[s]hould anyone wish to discuss any issue involved
with [the appellant], please do not hesitate to contact me. I ask that [the appellant’s
representation] by counsel be accorded the appropriate and required deference.” RAF,
Tab 9 at 66.
15
ORDER
For the reasons discussed above, we REMAND this appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the judge shall accept argument and evidence and make findings as to
whether the agency showed that the appellant’s performance was unacceptable
prior to the PIP. The administrative judge shall also reconsider the appellant’s
affirmative defense of disparate treatment disability discrimination and make new
findings on that issue. The administrative judge may incorporate his prior
findings, as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.