remanding the appellant’s chapter 43 appeal because the parties did not have an opportunity to address the modified standard set forth in Santos
How later courts described this case
- remanding the appellant’s chapter 43 appeal because the parties did not have an opportunity to address the modified standard set forth in Santos
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY D. MORTON, DOCKET NUMBER
Appellant, DA-0432-18-0352-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: May 20, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Terrence Johns , New Orleans, Louisiana, for the appellant.
Julieanna Walker and Marion Brown , New Orleans, Louisiana, 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 that
sustained her chapter 43 removal from the agency for unacceptable performance
and found that she did not prove the affirmative defenses of discrimination based
on her race, color, and disability, and retaliation for prior equal employment
opportunity (EEO) activity. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petition for review. We MODIFY the initial decision to apply the appropriate
legal standards to the appellant’s claim of disparate treatment disability
discrimination and REMAND the appeal to the Dallas 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 worked for the agency as a GS-12 Systems Accountant and
was responsible for analyzing material to guarantee the accuracy of transactions
and reports, ensuring the integrity of accounting systems, and improving system
efficiencies through recommendations for modification. Initial Appeal File
(IAF), Tab 1 at 2, Tab 8 at 55-57. In August 2017, the agency placed the
appellant on a 60-day performance improvement plan (PIP) due to her
unacceptable performance in two critical elements and one noncritical element of
her performance standards. IAF, Tab 8 at 80-84. The PIP notice outlined the
appellant’s unacceptable performance, described what successful performance on
the included elements consisted of, listed tasks for each element that the appellant
needed to complete during the PIP, and warned the appellant that removal was
possible if she did not improve her performance in each critical element to a
successful level. Id. When the PIP concluded, the appellant’s supervisor
determined that the appellant had not raised her level of performance to a
successful level on the mission results and research and analysis critical elements
due to errors in her work, untimely submission of assignments, and her failure to
complete research and analysis to identify cases or corrective action. Id.
at 43-48. As a result, the agency proposed the appellant’s removal. Id. After
considering the appellant’s written and oral replies to the proposal and the
supporting evidence, the deciding official removed the appellant, effective
April 27, 2018. Id. at 29-33.
3
The appellant filed a Board appeal contesting her removal and raising the
affirmative defenses of discrimination based on her race (African American),
color (brown), disability (deafness in one ear), and retaliation for prior EEO
activity. IAF, Tab 1, Tab 13 at 3, Tab 22 at 3. After holding the requested
hearing, the administrative judge issued an initial decision sustaining the
appellant’s removal for unacceptable performance, finding that the agency met its
burden of proving by substantial evidence each of the required elements of a
chapter 43 action. IAF, Tab 24, Tab 25, Initial Decision (ID) at 7-13. The
administrative judge also found that the appellant failed to prove any of her
affirmative defenses. ID at 13-22. The appellant then filed a petition for review,
and the agency responded in opposition. Petition for Review (PFR) File, Tabs 1,
3.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to apply the appropriate legal standards to the
appellant’s disparate treatment disability discrimination claim.
In her appeal, the appellant raised the affirmative defenses of
discrimination based on her race, color, disability, and retaliation for prior EEO
activity. IAF, Tab 13 at 3, Tab 22 at 3. The administrative judge determined in
the initial decision that the appellant failed to prove that her race, color, or EEO
activity was a motivating factor in her removal, or establish disability
discrimination based on her allegations of failure to accommodate or disparate
treatment. ID at 13-22. On review, the appellant makes reference to the
retaliation for EEO activity affirmative defense when she states that the proposing
official knew of her prior EEO activity when she issued the proposed removal.
PFR File, Tab 1 at 4. The administrative judge acknowledged this undisputed
fact in the initial decision and considered it in her analysis when ultimately
concluding that both the proposing and deciding officials had no motive to
retaliate against the appellant for her prior EEO activity. ID at 17-18. Our
review reaches the identical conclusion on the EEO retaliation claim. Further, on
4
review, the appellant does not specifically dispute the administrative judge’s
findings regarding her failure to prove discrimination based on race and color,
and her claim that the agency failed to accommodate her. ID at 13-22; PFR File,
Tab 1. We see no reason to disturb these findings either. We do, however,
modify the initial decision to apply the current, appropriate legal standards to the
appellant’s affirmative defense of disparate treatment disability discrimination.
The administrative judge analyzed the appellant’s disparate treatment
disability discrimination claim under the framework from McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973). ID at 19-22. In Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶ 25 (internal quotations omitted),
which was decided after the issuance of the initial decision in this case, the Board
approved the use of the McDonnell Douglas framework, not as a rigid,
mechanized methodology, but as a sensible, orderly way to evaluate evidence of
employment discrimination. We therefore take no issue with the administrative
judge’s application of the framework for that purpose. But the Board in Pridgen
held that the same standards of proof applicable to Title VII claims, including
claims of retaliation for opposing discrimination in violation of Title VII , apply
to claims of disparate treatment disability discrimination. Id., ¶¶ 30, 42. Thus,
an appellant may prove a claim of disparate treatment disability discrimination
under the motivating factor standard, in other words, by proving that prohibited
discrimination “play[ed] any part in the way a decision [was] made.” Id.,
¶¶ 20-21. 2
2
The administrative judge correctly applied the motivating factor standard to conclude
that the appellant did not establish that her removal was motivated by her race, color, or
EEO activity. ID at 15, 19. Because we agree with the administrative judge’s finding
that the appellant failed to show that any prohibited consideration was a motivating
factor in the agency’s action and the appellant has not challenged this finding on
review, we need not resolve the issue of whether the appellant proved that
discrimination or retaliation was a “but-for” cause of the agency’s decisions. See
Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33. To the extent the appellant’s EEO retaliation
claim constituted a claim of retaliation under the Americans with Disabilities Act, to
which Pridgen, 2022 MSPB 31, ¶ 46, held that the “but-for” standard applied, the
administrative judge applied the correct standard in finding that the appellant did not
5
Ultimately, however, application of the Pridgen standards does not require
disturbing the administrative judge’s denial of the appellant’s disparate treatment
disability discrimination claim. In denying the claim, the administrative judge
found that the appellant did not establish that either the proposing or deciding
officials knew her to be disabled, did not show that anyone involved in her
removal harbored any animus towards her because of her disability, and did not
present evidence of similarly situated non-disabled comparators who were treated
better than she was. ID at 22. In light of these unchallenged findings, we
conclude that the appellant did not establish even the lower burden set forth in
Pridgen that her disability was a motivating factor in her removal.
Remand is required in light of Santos .
We discern no basis to disturb the administrative judge’s findings that the
agency proved by substantial evidence all of the elements it was required to prove
in a chapter 43 performance-based removal under the law as it existed at the time.
The administrative judge’s findings regarding those elements are supported by the
evidence, the inferences are appropriate, and the credibility determinations are
reasoned. ID at 1-23; see Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6
(2016) (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 and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
In her petition for review, the appellant reiterates one of the arguments that
she raised before the administrative judge —that the agency did not provide her
with a reasonable opportunity to demonstrate that her performance improved to an
acceptable level because her PIP period lasted 60 days instead of 90 days. PFR
File, Tab 1 at 4-5. At no juncture does the appellant cite to any authority
requiring the agency to afford her a 90-day PIP period. The agency’s procedures
outline that a PIP period can last 60 days. IAF, Tab 12 at 37. Further, when
prove that she would not have been removed but for her EEO activity. ID at 15, 19.
6
assessing whether an agency afforded an employee a reasonable opportunity to
demonstrate acceptable performance, relevant factors include the nature of the
duties and responsibilities of the employee’s position, the performance
deficiencies involved, and the amount of time given to the employee to
demonstrate acceptable performance. Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 32 (2010). The Board also considers the level of assistance
provided to the employee during the PIP period. See Bare v. Department of
Health and Human Services, 30 M.S.P.R. 684, 687-88 (1986).
In this instance, the agency informed the appellant through the PIP notice
of her unacceptable performance in the two critical elements for which she was
ultimately removed, listed the tasks that she was required to perform to
demonstrate successful performance, and stated that if she did not improve her
performance in each of the critical elements to the successful level at the
conclusion of the PIP, her removal was possible. IAF, Tab 8 at 80-84. While the
agency did assign the appellant new accounting responsibilities over three smaller
offices in May 2017, the appellant served as a Systems Accountant since 2012
and at the GS-12 level since 2015, and she admittedly had familiarity with many
of the tasks assigned to her during the PIP period. 3 Hearing Compact Disc (HCD)
(testimony of the appellant; testimony of the appellant’s first-line supervisor).
The PIP tasks correlated with the core duties of the appellant’s position and broke
down larger assignments into short-term, quantifiable steps. IAF, Tab 8 at 55-57,
80-83.
Relatedly, during the PIP period, the appellant’s first- and second-line
supervisors met with her on at least five occasions to provide feedback on the
appellant’s work product and to answer questions and provide assistance. Id.
3
The agency assigned the appellant these new responsibilities at her request. Hearing
Compact Disc (testimony of the appellant; testimony of the appellant’s first-line
supervisor). The evidence demonstrates that handling the accounting tasks for these
new offices was less complex compared to the work that the appellant performed for the
previous office. Id. (testimony of the appellant’s first-line supervisor; testimony of the
appellant’s second-line supervisor).
7
at 87, 90-92, 96-97, 100, 105, 107; HCD (testimony of the appellant’s first-line
supervisor). The appellant did not attend at least two other scheduled meetings of
this kind. IAF, Tab 8 at 101-104. The appellant’s first-line supervisor provided
her with detailed instructions, guidance, and tutorials to aide in her progression
during the PIP. IAF, Tab 10 at 83-88, Tab 11 at 6, 15-17. While the appellant
contends that the agency did not adequately train her, there is no evidence in the
record that the appellant ever sought training. HCD (testimony of the appellant).
Therefore, the 60-day PIP period presented a reasonable opportunity for the
appellant to show improvement to the successful level. See Melnick v.
Department of Housing and Urban Development, 42 M.S.P.R. 93, 101-02 (1989)
(finding a 30-day PIP period sufficient in length to demonstrate acceptable
performance), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). The fact that the
appellant could have been provided with a longer PIP period does not, in itself,
undermine the propriety of the 60-day PIP period at issue here.
In any event, though the appellant has identified no basis for us to disturb
the administrative judge’s findings below, 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).
8
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 her 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 defenses, the
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 her legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.