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
GREGORY D. REYNOLDS, DOCKET NUMBER
Appellant, DA-0432-19-0149-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: May 22, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Gregory D. Reynolds , Natchez, Mississippi, pro se.
Latriece Jones , Mobile, Alabama, 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 his removal for unacceptable performance. On petition for review, the
appellant argues, among other things, that he was denied the opportunity to
present evidence and witnesses, that the agency representative did not submit into
the Board record documents that the appellant provided, and that his performance
was not unacceptable because he had been rated fully successful in prior years.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
For the reasons discussed below, we GRANT the petition for review, VACATE
the initial decision, and REMAND the case to the Dallas Regional Office for
further adjudication in accordance with this Remand Order and Santos v. National
Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency proved the elements of its
chapter 43 action under the law when the initial decision was issued.
After a hearing, the administrative judge found that the agency proved by
substantial evidence that the Office of Personnel Management approved the
agency’s performance appraisal system, the agency communicated to the
appellant the performance standards and critical elements of his position, the
appellant’s performance standards were valid, the agency warned the appellant of
the inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to demonstrate acceptable performance by placing him on
a 90-day performance improvement plan (PIP), and the appellant’s performance
remained unacceptable in critical element 2 of his performance standards during
the PIP period. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 5-19.
We have reviewed the record and the arguments raised on review, and agree that
the agency established the elements of its chapter 43 action under the law when
3
the initial decision was issued. 2 We must nevertheless remand the appeal to
account for Santos, as discussed below.
Regarding the appellant’s argument on review that he was denied the
opportunity to submit evidence and present witnesses, the administrative judge
set a deadline date for the submission of prehearing submissions, including the
identification of witnesses and the submission of documents. IAF, Tab 10 at 2,
Tab 17. In her April 16, 2019, Order and Summary of Telephonic Prehearing
Conference, the administrative judge approved a number of agency witnesses and
noted that the appellant did not submit prehearing submissions or request any
witnesses. IAF, Tab 19 at 5. She also informed the parties that any exhibit
offered after the prehearing conference would be untimely and would not be
admitted unless the party established good cause for the delay or the document
was not previously available. Id. The administrative judge stated in the order
that if either party disagreed with her summary, she must receive a written
objection or motion to supplement the summary no later than April 22, 2019. Id.
at 6. Neither party objected to the administrative judge’s summary.
Before the administrative judge heard witness testimony at the hearing, she
noted that the appellant had requested that he be permitted to submit evidence and
to call additional witnesses. Hearing Compact Disc (HCD) (statement of the
administrative judge). She also noted that the appellant stated that he had
2
On review, the appellant does not assert that the administrative judge erred in her
findings regarding his affirmative defenses of harmful procedural error and retaliation
for equal employment opportunity (EEO) activity. We observe that, before analyzing
the appellant’s EEO reprisal claim, the administrative judge cited an obsolete
burden-shifting framework inconsistent with the Board’s decision in Pridgen v. Office
of Management and Budget, 2022 MSPB 31. ID at 20-21. Nevertheless, in her analyses
of the appellant’s EEO reprisal claim, the administrative judge applied the appropriate
standard to conclude that the appellant did not establish that his EEO complaint was
even a motivating factor in his removal. ID at 21. 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 retaliation was a “but-for” cause of the agency’s decision. See
Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
4
attempted to submit the documents but that the limitations on the size of files that
can be submitted through the Board’s e-Appeal system precluded him from filing
the documents. Id. Additionally, she noted that the appellant admitted that he
had not faxed or mailed the documents for inclusion in the record. Id. She then
found no good cause for the appellant’s late submission and did not admit the
evidence into the record or allow the appellant to call witnesses. Id.
An administrative judge has broad discretion to control the proceedings
before her, including ruling on whether requested evidence will be admitted.
5 C.F.R. § 1201.41(b)(3); see Guerrero v. Department of Veterans Affairs,
105 M.S.P.R. 617, ¶ 20 (2007). Among other things, the Board has held that an
administrative judge may exclude evidence and witnesses where the evidence was
not identified in a prehearing submission unless good cause exists for the failure.
See Stewart–Maxwell v. U.S. Postal Service, 56 M.S.P.R. 265, 271 (1993). Here,
the administrative judge clearly informed the appellant of the time limit to file his
prehearing submission, and he did not submit documents or request witnesses
within that time limit. Further, at the hearing, he admitted that, after he
unsuccessfully tried to electronically file his large submission, he did not use
other available means to submit the pleading into the record. HCD. Thus, the
administrative judge did not abuse her discretion in refusing to grant the
appellant’s request to submit evidence and to call witnesses.
Regarding the appellant’s argument that the agency representative did not
submit into evidence documents that the appellant provided to him, there is no
requirement that a party submit to the Board material provided by the opposing
party. If the appellant possessed evidence that he wanted the Board to consider,
he should have filed it with the Board consistent with the administrative judge’s
instructions and the Board’s regulations. The appellant’s argument that his
removal for poor performance was improper because he had been rated fully
successful in the past is without merit. The fact that the appellant’s performance
5
in 2017 and before was deemed fully successful does not mean that the appellant
performed acceptably after that. 3
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
from both parties regarding whether the agency proved by substantial evidence
3
Attached to the appellant’s petition for review and supplement are a number of
documents, including a copy of an Agreement to Mediate an EEO Precomplaint, a copy
of the appellant’s fiscal year 2018 performance appraisal and his comments to it, a copy
of the decision on the appellant’s unemployment insurance claim, a copy of a letter
from the appellant regarding his refusal to accept his 2018 midyear performance review,
and copies of documents related to a project on which the appellant worked. Petition
for Review File, Tab 1 at 5-35, Tab 3 at 8-186. The appellant’s 2018 performance
appraisal was submitted into the record below. The remainder of the submissions are
offered for the first time on review. Under 5 C.F.R. § 1201.115, the Board generally
will not consider evidence submitted for the first time with a petition for review absent
a showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 213-14 (1980). The documents are dated before the close of the record below, and
the appellant has not explained why they could not have been submitted previously.
Accordingly, we need not consider the documents. In any event, we fail to discern how
the documents demonstrate error in the initial decision.
6
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 analyses 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.