The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID GREEN, DOCKET NUMBER
Appellant, PH-0432-19-0370-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 29, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David Green , Bel Air, Maryland, pro se.
Jennifer Murphy , Aberdeen Proving Ground, Maryland, 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 his removal under 5 U.S.C. chapter 43. For the reasons set forth below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
the appeal to the Northeastern Regional Office for further adjudication consistent
with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 was an NH-03 Physical Scientist for the agency’s Aberdeen
Test Center. 2 Initial Appeal File (IAF), Tab 1 at 1, Tab 9 at 4. The appellant’s
duties involved providing scientific services to the Department of Defense and
other customers, particularly materials testing in a laboratory setting. IAF, Tab 9
at 7-9. The appellant’s position is subject to an Office of Personnel Management
(OPM)-approved demonstration project known as the “Contribution-based
Compensation and Appraisal System” (CCAS). IAF, Tab 9 at 21-25, Tab 12
at 81; see generally 5 U.S.C. § 4703 (authorizing OPM to conduct demonstration
projects); Civilian Acquisition Workforce Personnel Demonstration (AcqDemo)
Project, Department of Defense (DOD), 82 Fed. Reg. 52104-01 (Nov. 9, 2017).
CCAS is a “contribution-based” appraisal system, as opposed to the
“performance-based” systems normally contemplated under 5 U.S.C. chapter 43.
82 Fed. Reg. at 52127-37. Positions under CCAS are grouped into four
“broadbands,” rather than assigned particular grades and steps as under the
General Schedule. Id. at 52114. Contribution is rated through “contribution
scores” in each of the following factors: (1) Job Achievement and/or Innovation;
(2) Communication and/or Teamwork; and (3) Mission Support. Id. at 52115.
Each factor has multiple levels of increasing contribution corresponding to the
broadband levels and contains descriptors for each respective level within the
relevant career path. Id. at 52127-28.
Acceptable contribution for any given broadband is determined by
reference to the “contribution score” assigned to that broadband, i.e., the
contribution level expected of an employee occupying a position under that
broadband. Id. at 52128, 52136. Because CCAS is a contribution-based system,
under-contributing employees are subjected to “contribution-based,” rather than
“performance-based,” actions. Id. at 52136. An employee who fails to
2
NH-03 is a pay band for business and technical management professionals which
corresponds to Grades 12 and 13 of the General Schedule. Initial Appeal File, Tab 12
at 243.
3
demonstrate acceptable contribution overall, or in any single contribution factor,
may be placed on a contribution improvement plan (CIP), which is analogous to
the opportunity to demonstrate acceptable performance under 5 C.F.R.
§ 432.103(d). Id. at 52136-37. All three contribution factors are considered
critical elements. Id. 52136. If an employee fails to demonstrate acceptable
contribution during the CIP, he may be reassigned, reduced in broadband or pay,
or removed. Id. at 52137. A contribution-based adverse action under CCAS is
appealable to the Board under 5 U.S.C. chapter 43. Id. at 52123, 52136.
Turning to the particular facts of this case, for the rating year ending
September 30, 2018, the appellant’s contribution score fell below the acceptable
level for each of the three critical factors. IAF, Tab 9 at 21-25. On February 6,
2019, the appellant’s supervisor placed him on a 60-day CIP. IAF, Tab 6
at 42-52. The CIP notice stated that, despite counseling since the end of the 2018
rating year, the appellant’s contribution remained unacceptable in all three
critical factors, and it provided examples of his unacceptable contribution in each.
Id. at 42, 44-48. The CIP notice also set forth the contribution standards and
specified three actions for each element that the appellant was required to
perform in order to demonstrate acceptable contribution during the CIP. Id.
at 43-50. The notice further stated that the appellant’s supervisor would meet
with him weekly, provide feedback, and help him address any problems as
needed. Id. at 51. The appellant was warned that failure to demonstrate
acceptable contribution during the CIP could result in his removal. Id.
After the close of the CIP, on June 11, 2019, the appellant’s supervisor
issued him a notice of proposed removal under the provisions of 5 U.S.C.
chapter 43, for unacceptable contribution during the CIP in two of the three
critical factors (Job Achievement and/or Innovation and Mission Support). Id.
at 7-15. After the appellant responded, the deciding official issued a decision
sustaining the charge and removing him effective July 18, 2019. IAF, Tab 6
at 4-6, Tab 9 at 4.
4
The appellant filed a Board appeal, contesting the merits of his removal and
raising affirmative defenses of harmful procedural error, denial of due process,
and deception or willful obstruction with respect to his right to compete for
employment. IAF, Tab 1 at 3, 5, Tab 31. After a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal. IAF, Tab 38,
Initial Decision (ID). She found that the agency carried its burden on each
element of its case, and that the appellant failed to prove his affirmative defenses
of harmful procedural error and violation of due process. Id.
The appellant has filed a petition for review contesting certain portions of
the administrative judge’s analysis and arguing that he has been denied due
process in his Board appeal. Petition for Review (PFR) File, Tab 1. The agency
has filed a response. PFR File, Tab 3.
ANALYSIS
The Board has recognized that the elements an agency must prove to
prevail in an appeal of a CCAS contribution-based action are somewhat different
than those in a traditional performance-based action under chapter 43, but that
contribution-based actions are still appealable to the Board under 5 U.S.C.
chapter 43. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 3 (2015);
Lin v. Department of the Air Force , 2023 MSPB 2, ¶¶ 12-18. Under the CCAS at
issue in this appeal, the agency was required to show the following by substantial
evidence: (1) it notified the appellant that he would be placed on a CIP; (2) it
informed him of what he must do during the CIP to demonstrate acceptable
contribution and warned him that failure to do so could result in an adverse
action; (3) it gave him a reasonable opportunity to demonstrate acceptable
contribution during the CIP; and (4) the appellant’s contribution was
unacceptable during the CIP. Thompson, 122 M.S.P.R. 372, ¶ 7. The
administrative judge in this case applied a more traditional framework for
reviewing chapter 43 performance-based actions. ID at 6. Nevertheless, even
5
assuming that the administrative judge erred in not applying the Thompson
standard, we find that the appellant’s substantive rights were not prejudiced
because the initial decision addressed all four factors set forth in Thompson. See
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis to reverse an initial decision). Specifically, the administrative
judge found that the agency proved by substantial evidence that: (1) it notified
the appellant that he would be placed on a CIP; (2) it informed him of what he
must do during the CIP to demonstrate acceptable contribution and warned him
that failure to do so could result in an adverse action; (3) it gave him a reasonable
opportunity to demonstrate acceptable contribution during the CIP; and (4) the
appellant’s contribution was unacceptable during the CIP. ID at 5-6, 14-28.
These findings are supported by the record, and the appellant does not challenge
them on review. We therefore find that the agency has met its burden as set forth
in Thompson. See 5 C.F.R. § 1201.115.
Applying the more traditional chapter 43 framework, the administrative
judge went on to find that the agency proved by substantial evidence that its
appraisal system was approved by OPM and that the appellant’s contribution
standards were valid. ID at 6-7, 10-14. The appellant appears to contest both of
these findings on petition for review. PFR File, Tab 1 at 4-8. Assuming, without
deciding, that the agency is also required to prove these matters by substantial
evidence, for the following reasons, we find that it has met its burden.
The appraisal system at issue is the AcqDemo CCAS. It is evident that this
appraisal system has been approved by OPM because it the centerpiece of the
OPM-approved AcqDemo demonstration project. 82 Fed. Reg. at 52104, 52110,
52127-38. On petition for review, the appellant argues that the agency changed
his occupational series code from Chemist (1320) to Physical Scientist (1301) and
back again several times, but OPM did not approve these changes. PFR File,
Tab 1 at 4, 6, 7; IAF, Tab 21 at 6. However, even if the agency’s actions in this
6
regard were improper, we are unaware of any law, rule, or regulation requiring
OPM approval of such changes with regard to a particular employee. See Whitney
v. Department of the Treasury, 28 M.S.P.R. 330, 333-34 (1985) (explaining that,
under 5 C.F.R. §§ 430.209(a), 430.210, it is the overall appraisal system, not the
particular performance standards, which require OPM approval). For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant’s argument has no bearing on whether OPM approved CCAS, and that
the agency carried its burden on this issue by substantial evidence. ID at 6-7.
The appellant also contests the validity of his contribution standards based
on the agency’s failure to settle on a firm classification for his position. PFR
File, Tab 1 at 4-7. The Board has found that, in order to be valid, performance
standards must be reasonable, realistic, and attainable, clearly stated in writing,
and to the maximum extent feasible, permit the accurate appraisal of performance
based on objective criteria. Towne v. Department of the Air Force, 120 M.S.P.R.
239, ¶ 21 (1990). In the initial decision, the administrative judge found that there
was no evidence that the title of the appellant’s position at the time he was placed
on the CIP had any bearing on the validity of the standards under which his work
was assessed. ID at 12. She found no evidence that the tasks assigned to
Chemists differed from those assigned to the appellant, or that the level of
performance expected of a Chemist differed from that of a Physical Scientist. Id.
On petition for review, the appellant argues that Chemist and Physical
Scientist are two distinct specialties, and he argues that the agency held him
“responsible for performing in two occupational series simultaneously.” Id. at 4,
6-7. After carefully considering the appellant’s argument, we agree with the
administrative judge that there is no indication that the classification assigned to
the appellant’s position had any bearing on the job duties to which he was
assigned or on the standards by which his contribution was judged. The OPM
classification standards, to which the appellant cites in support of his argument,
bear this out.
7
Both Chemist and Physical Scientist are part of the same Physical Sciences
Occupational Group 1300. IAF, Tab 35 at 5-6. The various occupational series
within the group, including the 1320 Chemistry Series, all pertain to the
application of a particular scientific discipline, e.g., chemistry, geophysics,
astronomy, or metallurgy, with the exception of the 1301 General Physical
Science Series, which “includes positions that involve professional work in the
physical sciences when there is no other more appropriate series, that is, the
positions are not classifiable elsewhere,” or the position “includes work in a
combination of physical science fields, with no one predominant.” Id. It
therefore appears that the duties of Chemist and Physical Scientist are not
mutually exclusive, the latter being something of a catchall that could include
duties proper to the former. Although the agency seems to have had some trouble
deciding exactly how to classify the appellant’s position, there is no evidence that
this affected the nature of his duties or the standards under which his
contributions were assessed. Nor do we find any support for the appellant’s
assertion that he was being required to perform in two occupational series
simultaneously. For the reasons explained in the initial decision, we agree with
the administrative judge that the agency proved by substantial evidence that the
contribution standards were valid. 3 ID at 10-14.
The appellant also argues that he was denied due process during Board
proceedings because the administrative judge heard unduly prejudicial testimony
from the deciding official. PFR File, Tab 1 at 4-5. According to the appellant,
the deciding official gave certain testimony that was meant to suggest to the
administrative judge that the appellant was mentally ill. 4 Id.; IAF, Hearing
3
To the extent that the appellant means to renew his affirmative defense of harmful
procedural error based on the agency’s alleged failure to classify his position properly,
for the reasons explained above, we agree with the administrative judge that he has
failed to show that any such error prejudiced his substantive rights. ID at 26-28; see
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991).
4
In his closing argument below, the appellant raised a due process defense based on the
deciding official’s testimony, arguing that his removal was based on reasons not set
8
Recording, Day 1, Track 4 at 7:40, 11:50 (testimony of the deciding official).
However, the initial decision does not reflect any reliance on this testimony, and
there is otherwise no indication that improper factors actually influenced the
administrative judge’s decision. We find that the appellant’s argument is wholly
speculative and is insufficient to show that his substantive rights were prejudiced
by the introduction of this evidence. See Zych v. U.S. Postal Service,
21 M.S.P.R. 638, 642 (1984); Johnson v. Department of the Air Force ,
13 M.S.P.R. 236, 239 (1982).
Finally, the appellant argues that his removal was based on a prohibited
personnel practice under 5 U.S.C. § 2302(b)(4) because, by continually changing
his occupational series, the agency deceived or willfully obstructed him with
respect to his right to compete for employment. PFR File, Tab 1 at 7-8.
Although the administrative judge did not address this claim below, we find that
this prohibited personnel practice pertains to hiring practices, and not to adverse
actions such as the one at issue in this appeal. We find no basis to conclude that
the appellant has been deceived or obstructed in his right to compete for
employment.
Nonetheless, we must remand this appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that part of
the agency’s burden under 5 U.S.C. chapter 43 is to justify the institution of a
forth in the proposal notice, i.e., the deciding official’s personal observation of the
appellant’s demeanor during work meetings. IAF, Hearing Recording, Day 2 at 13:40
(the appellant’s closing argument). The administrative judge addressed this claim in
her initial decision, but she found that no due process violation occurred because the
deciding official did not consider the matter in reaching his decision. ID at 26 n.12.
We do not interpret the appellant’s argument on review as a challenge to this finding;
instead, we interpret it as a new argument that he was deprived of a fair and impartial
adjudication before the Board because the administrative judge heard unduly prejudicial
testimony concerning his mental health. PFR File, Tab 1 at 4-5. In any event, to the
extent that the appellant is contesting the administrative judge’s analysis of his due
process claim, we find that he has provided no basis to disturb her reasoned and
explained findings on the issue.
9
performance improvement plan (PIP) by proving by substantial evidence that the
employee’s performance was unacceptable prior to that time. Following the
issuance of Santos, the Board issued an Opinion and Order in Lee v. Department
of Veterans Affairs, 2022 MSPB 11, ¶ 15, which incorporated the changes made
by Santos and set forth the agency’s burden of proof, concluding that in order 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
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.
Although Santos involved a performance-based action under a traditional
performance-based appraisal system, the court’s reasoning applies equally well to
contribution-based adverse actions under CCAS. See Lin, 2023 MSPB 2, ¶ 19
(applying Santos to a performance-based actions arising out of a similar
contribution-based system). The agency’s authority to initiate a CIP under CCAS
is predicated on “[a]n inadequate contribution assessment in any one contribution
factor at any time during the appraisal period.” 82 Fed. Reg. at 52136. A CIP
notice must explain how the employee’s contribution scores are inadequate and
what improvements are required, and inform him that he may face an adverse
action “unless the employee’s contribution increases.” Id.; cf. Santos, 990 F.3d
at 1360-61 (examining similar statutory language to conclude that that an agency
must justify institution of a PIP when an employee challenges a
performance-based removal under chapter 43).
10
The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16. Although the record in this appeal already contains some evidence
suggesting that the appellant’s contribution leading up to the CIP was
unacceptable, IAF, Tab 6 at 42, 44-48, Tab 9 at 21-25, we remand the appeal to
give the parties the opportunity to present argument and additional evidence on
the issue, see Lee, 2022 MSPB 11, ¶¶ 15-17. On remand, the administrative
judge shall accept argument and evidence on this issue, and shall hold a
supplemental hearing if appropriate. Id., ¶ 17.
The administrative judge shall 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 her prior findings on
the other elements of the agency’s case and the appellant’s affirmative defenses
in the remand initial decision. See id. However, regardless of whether the
agency meets its burden, if the argument or evidence on remand regarding the
appellant’s pre-CIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defenses, she should address such argument or evidence in
the remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests).
11
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.