James Berry v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES D. BERRY, DOCKET NUMBER

Appellant, SF-0432-18-0523-I-1

v.

DEPARTMENT OF THE NAVY, DATE: May 17, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Chalmers C. Johnson , Esquire, Port Orchard, Washington, for the appellant.

Christina T. Fuentes , Esquire, Sandra Lizeth Schoepfle , Esquire, and

Alison Gray , Washington, D.C., 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 based on unacceptable performance. For

the reasons discussed below, we GRANT the petition for review. We MODIFY

the initial decision to apply the appropriate legal standards to the appellant’s

affirmative defense of retaliation for engaging in prior equal employment

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

opportunity (EEO) activity, and REMAND the appeal to the Western Regional

Office for further adjudication consistent with this Remand Order and Santos v.

National Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).

BACKGROUND

The appellant was employed as a GS-07 Human Resources Assistant at the

agency’s Office of Civilian Human Resources in Silverdale, Washington. Initial

Appeal File (IAF), Tab 5 at 24. On December 18, 2017, the agency issued him a

Notice of Unacceptable Performance, which identified his deficiencies in the

critical elements of Personnel Action Processing 2 and Technical Proficiency, and

the agency placed him on a 60-day performance improvement plan (PIP) from

December 18, 2017, to February 23, 2018. IAF, Tab 6 at 4-7. The agency

proposed his removal under 5 U.S.C. chapter 43 based on a charge of failure to

demonstrate an acceptable level of performance in the critical element of

Personnel Action Processing during his recent PIP. IAF, Tab 5 at 28-31. After

considering his written response, the agency removed him from his position,

effective April 25, 2018. Id. at 25-27 .

The appellant filed an appeal with the Board challenging his removal and

raising the affirmative defense of retaliation for prior EEO activity. IAF, Tab 1.

Following a hearing, the administrative judge issued an initial decision that

affirmed the agency’s action, finding that the agency proved the merits of its

action by substantial evidence and the appellant did not prove his affirmative

defense of retaliation for prior EEO activity. IAF, Tab 22, Hearing Compact Disc

(HCD), Tab 26, Initial Decision (ID) at 7-30. He noted that the Board was

without the authority to mitigate a performance-based removal under chapter 43.

ID at 30.

The appellant has filed a petition for review. 3 Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 9.

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This critical element was also referred to as Processing Personnel Actions. IAF,

Tab 26 at 3 n.2.

3

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency met its burden of proof

for a performance-based removal under 5 U.S.C. chapter 43 under the law when

the initial decision was issued.

In a performance-based action under chapter 43, under the law when the

initial decision was issued, an agency was required to establish by substantial

evidence 4 that: (1) the Office of Personnel Management (OPM) approved its

performance appraisal system; (2) the agency communicated to the appellant the

performance standards and critical elements of his position; (3) the appellant’s

performance standards are valid; (4) the agency warned the appellant of the

inadequacies of his performance during the appraisal period and gave him a

reasonable opportunity to improve; and (5) the appellant’s performance remained

unacceptable in at least one critical element. Lee v. Environmental Protection

Agency, 115 M.S.P.R. 533, ¶ 5 (2010) .

On review, the appellant only contests the administrative judge’s findings

regarding the first element. 5 PFR File, Tab 6 at 3-6. In particular, he asserts that

(1) he did not stipulate to the first element, (2) the agency did not meet its burden

of proof because it failed to produce any evidence as to the first element, and

(3) he raised a “cogent and specific challenge on the issue of whether the rating

system complied with OPM requirements” when he argued that “the PIP lacked

any objective criteria for evaluating his performance and was so completely

subjective that he had no idea how to ‘pass’ it.” Id. at 3-5 (citing ID at 11) .

3

The appellant subsequently filed a “corrected” petition for review, PFR File, Tab 6,

which included minor changes to the footer and the date of the pleading. Because it

does not appear that there are any substantive changes to the petition for review, we

herein refer to the petition for review submission as PFR File, Tab 6.

4

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

We affirm the administrative judge’s findings regarding what were, prior to Santos,

the remaining elements of a chapter 43 action.

4

Ordinarily, the Board will presume that OPM has approved the agency’s

performance appraisal system; however, if an appellant has alleged that there is

reason to believe that OPM did not approve the agency’s performance appraisal

system or made significant changes to a previously approved system, the Board

may require the agency to submit evidence of such approval. Lee, 115 M.S.P.R.

533, ¶ 5; Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 12 (1999).

We agree with the administrative judge that, under these circumstances, the

appellant did not challenge OPM’s approval of the agency’s performance

appraisal system or allege that the agency made significant changes to a

previously approved system. Therefore, it is appropriate to apply the

presumption that OPM has approved the agency’s performance appraisal system.

ID at 8.

The appellant’s characterization of his refusal to stipulate to the first

element and his disagreement with the PIP criteria do not constitute a specific

challenge to the issue of whether OPM approved the agency’s performance

appraisal system or whether the agency significantly changed a previously

approved system and are insufficient to rebut the presumption of OPM approval.

ID at 8, 11; IAF, Tab 21 at 4. His allegation that the agency did not produce any

evidence of OPM approval is likewise unavailing. The burden was on the agency

to produce evidence of OPM approval if the appellant raised a specific challenge.

Daigle, 84 M.S.P.R. 625, ¶ 12. The appellant did not raise such a challenge until

his petition for review, which prompted the agency to produce a copy of OPM’s

January 31, 1996 approval of its performance appraisal system. PFR File, Tab 9

at 22. We will consider this evidence on review. See Daigle, 84 M.S.P.R. 625,

¶ 9 (explaining that the Board will consider evidence of OPM approval of the

performance appraisal system on review when the agency was not placed on

timely notice that it would be a dispositive issue in the appeal). There is no

indication in the record that the agency made significant changes to the

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previously approved system. We therefore affirm the administrative judge’s

conclusion that the agency proved the first element by substantial evidence.

In asserting that the PIP lacked objective criteria, the appellant conflates

the validity of his performance standards (element 3) with OPM’s approval of the

agency’s performance appraisal system (element 1). The administrative judge

addressed this claim in evaluating the third element, and determined that the

agency proved by substantial evidence that the performance standards in the

critical element of Personnel Action Processing were valid. ID at 9-13.

As set forth in the initial decision, 5 U.S.C. chapter 43 requires that

performance standards, to the maximum extent feasible, permit the

accurate evaluation of performance on the basis of objective criteria. ID at 9;

Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 21 (2013).

Standards must be reasonable, realistic, attainable, and clearly stated in writing.

Towne, 120 M.S.P.R. 239, ¶ 21. Performance standards should be specific

enough to provide an employee with a firm benchmark toward which to aim his

performance and must be sufficiently precise so as to invoke general consensus as

to their meaning and content. Id. Even when performance standards are vague on

their face, the agency may cure the defect by fleshing out the standards thorough

additional oral or written communication. Id., ¶ 23.

The initial decision contains a thorough analysis of this element. ID

at 9-13. The administrative judge found that “both the performance plan and the

PIP, when viewed holistically, provided clear, objective guidance” not only from

the outset of the appraisal period but also throughout the entire PIP. ID at 11-12.

In so finding, he explained that the performance plan set forth the standards for

the critical element of Personnel Action Processing, the agency attached quality

review worksheets to the appellant’s assignments which identified his errors and

provided guidance for accurate processing of personnel actions, the PIP notice

gave him additional guidance, and the appellant’s supervisor discussed with him

the pay impacting errors he made during the appraisal period and the actions he

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needed to take to demonstrate acceptable performance. ID at 10-13; e.g.,

IAF, Tabs 6-7, 12. The administrative judge noted that 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 it, he found

that the standards were reasonable, realistic, attainable, and clearly stated in

writing, and he concluded that the agency proved by substantial evidence that the

performance standards were valid. ID at 12. We discern no basis to disturb the

administrative judge’s finding regarding the validity of the appellant’s

performance standards under 5 U.S.C. § 4302(c)(1). ID at 12-13. Thus, we

affirm the administrative judge’s determination that the agency proved

by substantial evidence that the appellant’s performance was unacceptable.

ID at 7-21. As discussed below, however, we must remand this appeal in light of

Santos.

We modify the initial decision to supplement the administrative judge’s analysis

of the appellant’s claim of retaliation for engaging in prior EEO activity, still

finding that the appellant did not prove this claim.

On review, the appellant does not challenge the administrative judge’s

finding that he did not prove his claim of retaliation for prior EEO activity. ID

at 21-30. The record reflects that the appellant filed an EEO complaint in which

he alleged that, in a series of incidents from March 13 to May 17, 2017, his

former first-line supervisor and his second-line supervisor discriminated against

him on the basis of disability (mental) and subjected him to a hostile work

environment for contacting an agency EEO official about a reasonable

accommodation request, and his new first-line supervisor retaliated against him

for filing an EEO complaint when he proposed his removal on March 19, 2018.

IAF, Tab 5 at 13-23, Tab 8 at 88-95.

In addressing the appellant’s affirmative defense, the administrative judge

applied an obsolete burden-shifting framework applicable to Title VII affirmative

defenses inconsistent with the Board’s decision in Pridgen v. Office of

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Management and Budget, 2022 MSPB 31, which was issued after the initial

decision in this case. ID at 21-30. In Pridgen, 2022 MSPB 31, ¶¶ 21 n.4, 46, the

Board held that claims of retaliation under the Americans with Disabilities Act

(ADA) are to be analyzed under the “but-for” causation standard, in which the

burden of persuasion always remains with the appellant. The Board stated that it

applies standards under the ADA, as amended by the Americans with Disabilities

Act Amendments Act of 2008, to determine whether there has been a violation of

the Rehabilitation Act, which protects both requesting a reasonable

accommodation and opposing disability discrimination—the protected activity at

issue in the appellant’s affirmative defense. Id., ¶¶ 35, 44.

Nevertheless, because the administrative judge correctly determined,

without engaging in any discernable burden shifting, that the appellant did not

prove that his EEO activity was a motivating factor in his removal, ID at 29, we

conclude that the appellant would not be able to satisfy the more stringent

“but-for” standard in Pridgen. The administrative judge found that the agency

effected the appellant’s removal, not due to retaliatory animus, but because the

appellant did not demonstrate acceptable performance in the critical element of

Personnel Action Processing during his PIP. ID at 26-28. In so finding, he noted

that the appellant did not dispute the performance deficiencies with which he was

charged; rather, he disagreed with the manner in which the PIP was administered

and the magnitude of his performance deficiencies. ID at 27. The administrative

judge did not accord much weight to the appellant’s assertions regarding the

motivation of agency officials in taking this action, finding that his testimony in

that regard was speculative, conclusory, unsupported, and implausible.

ID at 25-28, 27 n.11. He observed that the proposing and deciding officials were

aware that he filed an EEO complaint but he found that they credibly denied

retaliatory intent. ID at 27-28. The Board must give deference to an

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

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

8

hearing; the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so. Purifoy v. Department of Veterans

Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not made such a

showing.

Remand is required in light of Santos .

Though the appellant has identified no basis for us to disturb the initial

decision, we nonetheless 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, in

addition to the five elements of the agency’s case set forth in the initial decision,

the agency must also justify the institution of a PIP by proving that the

employee’s performance was unacceptable prior to 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. We therefore remand this case for further adjudication of the

appellant’s removal under the standard set forth in Santos. See id. (remanding the

appellant’s chapter 43 appeal because the parties did not have an opportunity to

address the modified standard set forth in Santos).

On remand, the administrative judge shall accept evidence and argument on

whether the agency proved by substantial evidence that the appellant’s pre-PIP

performance was unacceptable. The administrative judge shall hold a

supplemental hearing if appropriate. The administrative judge shall then issue a

new initial decision consistent with Santos. If the agency makes the additional

showing required under Santos on remand, the administrative judge may

incorporate his prior findings on other elements of the agency’s case in the

remand initial decision. However, regardless of whether the agency meets its

burden, if the argument or evidence on remand regarding the appellant’s pre-PIP

performance affects the analysis of the appellant’s affirmative defense, the

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administrative judge 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).

ORDER

For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.