Karl Brookins v. Department of the Interior ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARL BROOKINS, DOCKET NUMBER
Appellant, DE-0432-18-0359-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: January 19, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Karl Brookins, Honolulu, Hawaii, pro se.
Deborah E. Yim, Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appeal to the Denver Field Office for further adjudication consistent with
Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir.
2021).
BACKGROUND
¶2 Prior to the removal at issue in this appeal, the agency employed the
appellant as a GS-12 Fish Biologist in the Ocean and Coastal Resources Branch,
Water Resources Division (WRD) of the National Park Service (NPS). Initial
Appeal File (IAF), Tab 8 at 25, 27. As a Fish Biologist, the appellant was
responsible for providing “direct technical assistance to parks in the areas of
fisheries management, habitat restoration, and population recovery” and “liaison
with fisheries professionals in the academic community, as well as regulatory
compliance, training, and other professional assistance” in support of the
agency’s activities. IAF, Tab 10 at 77-80.
¶3 On May 2, 2017, the appellant’s supervisor placed him on a 90 -day
performance improvement plan (PIP) to give him an opportunity to improve his
performance to at least minimally successful for critical element 5. IAF, Tab 19
at 83-87. On July 31, 2017, she notified him that he had successfully completed
the PIP. IAF, Tab 9 at 96. Just over 5 months later, on January 11, 2018, 2 his
supervisor placed him on a second PIP to allow him an opportunity to improve his
performance to at least minimally successful in critical elements 1 and 2 by
completing specified tasks—namely, for critical element 1, one panel-reviewed
funding proposal and, for critical element 2, one approved interagency program
initiative—within 42 days. IAF, Tab 8 at 72, Tab 9 at 70-73.
¶4 On May 2, 2018, the appellant’s supervisor proposed his removal under
chapter 43 for “failure to achieve an acceptable level of performance after
2
The agency also denied the appellant’s within-grade increase (WIGI). The appellant
appealed both the denial of his WIGI and his placement on the PIP. Brookins v.
Department of the Interior, MSPB Docket Nos. DE-531D-18-0028-I-1, DE-3443-18-
0140-I-1. His petitions for review in those appeals were resolved in separate decisions.
3
unsuccessful completion of a [PIP].” IAF, Tab 8 at 71-75. She explained that he
did not timely complete either project required by the PIP and that his
performance was thus unsatisfactory in both critical elements 1 and 2. Id. After
the appellant responded, the deciding official issued a decision letter removing
him effective June 18, 2018. Id. at 27-31, 46-52. The appellant filed a Board
appeal in which he contested the merits of the removal and raised d ue process and
harmful procedural error affirmative defenses. IAF, Tabs 1, 7, 14, 21-22, 27, 38.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision affirming his removal. IAF, Tab 40, Initial Decision (ID).
¶5 The appellant has filed a petition for review, the agency has responded, and
the appellant has replied to the agency’s response. Petition for Review (PFR)
File, Tab 1, 3-4.
ANALYSIS
Although the administrative judge correctly found that the agency m et its burden
to prove most of the elements of its performance-based charge by substantial
evidence, we must remand the appeal for consideration of an additional element .
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence 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 under 5 U.S.C. § 4302(c)(1);
(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. 3 White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5
3
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).
4
(2013). 4 In this case, the administrative judge found that the agency proved all of
these elements. ID at 6-20. On review, the appellant challenges the
administrative judge’s determinations that his performance standards were valid,
that the agency informed him of the deficiencies in his performance and afforded
him a reasonable opportunity to improve, and that hi s performance remained
unacceptable in at least one critical element. 5 PFR File, Tabs 1, 4.
The administrative judge correctly found the performance
standards valid.
¶7 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria. 5 U.S.C.
§ 4302(c)(1); Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 29
(2010). Standards must be reasonable, realistic, attainable, and clearly stated in
writing. Lee, 115 M.S.P.R. 533, ¶ 29. Provided these requirements are met,
however, the Board will defer to managerial discretion in determining what
agency employees must do to perform acceptably in their positions. Id.¶8 Here, the appellant’s Employee Performance Appraisal Plan (EPAP)
contained five critical elements, and the agency rated his performance on a
five-tiered rating system, in which the possible ratings were exceptional, superior,
fully successful, minimally successful, and unsatisfactory. 6 IAF, Tab 9 at 75-94.
For each critical element, the EPAP set forth three components that must be met
4
Although White provides that criterion 3 requires that performance standards must be
valid under 5 U.S.C. § 4302(b)(1), the National Defense Authorization Act of 2018
redesignated subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
5
The appellant has not challenged, and we discern no reason to disturb, the
administrative judge’s findings that the agency established that OPM approved the
agency’s performance appraisal system and that the agency communicated the
performance standards and critical elements of his position to him. ID at 5 -7; IAF,
Tab 7 at 4-5.
6
OPM approved this five-level performance appraisal system in 2005. IAF, Tab 10
at 82.
5
in order to achieve each rating level. Id. As relevant here, the EPAP specified
that, to achieve a rating of minimally successful in critical element 1, the
appellant must meet the following requirements: (1) develop at least one
approved peer-reviewed publication, presentation, or webinar; (2) independently
develop and submit at least one panel-reviewed funding proposal to provide
additional service to parks; and (3) develop at least one new working relation and
maintain existing working relationships to accomplish specified tasks. IAF,
Tab 9 at 77. To achieve a rating of minimally successful in critical element 2, he
must meet the following requirements: (1) participate in at least one
collaborative effort that results in tangible benefits to NPS; (2) initiate and
develop at least one collaborative effort that results in tangible benefits to NPS;
and (3) develop at least one approved interagency program initiative that supports
NPS goals. Id. at 80. For purposes of the annual performance appraisal, the
appellant had to meet all three components to achieve a rating of minimally
successful; if he failed to do so, he would receive a rating of unsatisfactory in that
critical element. Id. at 77, 80.
¶9 In the initial decision, the administrative judge found that critical
elements 1 and 2 were written, measurable, and attainable. ID at 7 -11. He
explained that, to the extent the standards required subjective interpretation, it
was unavoidable given the qualitative aspects of the appellant’s scientific field
and the agency’s mission. ID at 9, 11. In finding the standards attainable, he
credited the appellant’s supervisor’s testimony that two other scientists had been
able to satisfy the same standards, in addition to fulfilling their other duties,
without complaint. ID at 9. Accordingly, he concluded that the performance
standards were valid. 7 ID at 10-11.
7
In assessing whether the appellant’s performance standards were attainable, the
administrative judge considered but found lacking in credibility the appellant’s cla im
that the status reports he was required to submit to his supervisor during the PIP period
took him 8 hours per week. ID at 9-10. However, the effect of a PIP requirement on
the appellant’s ability to successfully complete the PIP appears to be more
6
¶10 On review, the appellant argues that, in considering whether the
performance standards were valid, the administrative judge erred in applying
5 U.S.C. § 4302(b)(1), rather than 5 U.S.C. § 4302(c). PFR File, Tab 1 at 16-19.
As noted above, the National Defense Authorization Act of 2018 redesignated
subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, section 4302(c)(1) now sets forth the
statutory requirements for a valid performance standard, i.e., to the maximum
extent feasible, performance standards must permit the accurate evaluation of job
performance on the basis of objective criteria related to the job in question for
each employee. 5 U.S.C. § 4302(c)(1). Although the appellant is correct that the
administrative judge incorrectly cited to section 4302(b)(1), rather than
section 4302(c)(1), this citation error did not affect the outcome of the a ppeal
because he set forth and applied the correct law for assessing whether
performance standards are valid. ID at 7-10; see Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (providing that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
¶11 The appellant next argues that his performance standards were not valid
because, counting the critical elements and their components, the PIP involved
6 “legally-defined elements” and his performance standards contained a total of
17 “legally-defined elements,” which both exceed the limit of 5 critical elements
approved by OPM. PFR File, Tab 1 at 17-19. The Board has long held, however,
that a critical element may include subelements and that the incumbent of a
position for which a compound standard has been established may be required to
perform acceptably with respect to each of those subelements. Lee, 115 M.S.P.R.
appropriately considered as a challenge to the adequacy of the appellant’s opportunity
to improve. See White, 120 M.S.P.R. 405, ¶ 5. Accordingly, we address the
administrative judge’s findings on this point and the appellant’s challenges to them
below in our discussion of whether the agency met its burden to show that it gave the
appellant a reasonable opportunity to improve.
7
533, ¶ 31; Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 627-28
(1984). Here, the subelements/components set forth under critical elements 1 and
2 contribute to the clarity of the appellant’s performance standards by describing
the quality, quantity, timeliness, and manner of performance required to be
appraised at a particular level of performance and are consistent with his job
description. See Lee, 115 M.S.P.R. 533, ¶ 31; Shuman, 23 M.S.P.R. at 627-28;
5 C.F.R. § 430.203 (defining “performance standard”). Thus, the fact that each
broadly labeled critical element contained component parts does not render the
performance standards invalid.
¶12 The appellant also argues that his performance standards did not conform to
the “agency-wide performance levels” in the agency’s Departmental Manual
(DM), which define in general terms each rating level, 8 and instead required him
to complete specific tasks. 9 PFR File, Tab 1 at 19-20; IAF, Tab 24 at 12-13. The
Board’s inquiry into the validity of performance standards, however, is limited to
whether they permit the accurate evaluation of job performance on the basis of
objective criteria and are reasonable, realistic, attainable, and clearly stated in
writing. Lee, 115 M.S.P.R. 533, ¶ 29. Provided these requirements are met, an
agency is free to set its performance standards as high as it thinks appropriate and
to utilize “absolute” performance standards—i.e., under which a single incident
of poor performance will result in an unsatisfactory rating on a critical element.
See Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, ¶¶ 9-15 (2004).
Here, we find that the appellant’s performance standards were valid because they
8
For example, the DM defines “fully successful” as “a good, sound performance that
meets organizational goals while effectively applying technical skills and
organizational knowledge to get the job done.” IAF, Tab 24 at 12-13.
9
The appellant appears to raise this argument for the first time on review. Nonetheless,
we have considered it because it appears to pertain to the validity of his performance
standards. See Neal v. Defense Logistics Agency, 72 M.S.P.R. 158, 161 (1996) (stating
that the agency must prove its action was based on valid performance standards, and the
Board is obliged to consider this issue, regardless of whether it has b een raised by the
parties).
8
meet the statutory requirements and discern no merit to his contention that they
are invalid because they require him to perform certain tasks rather than rating
him in accordance with the general definitions in the DM.
¶13 The appellant additionally argues that the panel -reviewed funding proposal
component of critical element 1 violates section 4303(b)(1)(A) because it is not
about the “performance by the employee” performing the “critical elements of the
employee’s position.” 10 PFR File, Tab 1 at 13, 21-22. As stated above, however,
so long as performance standards are objective and meet the other statutory
requirements, the Board will defer to the agency’s managerial discretion to
determine what the appellant must do to perform acceptably in his position. See
Lee, 115 M.S.P.R. 533, ¶ 29. The requirement that the appellant submit a funding
proposal for panel review is related to the appellant’s duties and responsibilities
and permits the accurate evaluation of his job performance on the basis of
sufficiently objective criteria. IAF, Tab 10 at 76-81. Although the outcome of a
panel review and the time required by the panel may be out of the appellant’s
control, he has not alleged or shown that the agency imposed the panel review
requirement in an unreasonable manner. See Guillebeau v. Department of the
Navy, 362 F.3d 1329, 1334, 1337 (Fed. Cir. 2004) (finding that a requirement that
“[a]ll web pages be peer reviewed prior to final submission” was not invalid
because the agency applied the requirement in a reasonable manner).
Accordingly, we discern no basis to conclude that the panel-reviewed funding
proposal component of critical element 1 was invalid .
¶14 Lastly, the appellant argues that, in finding the performance standards
attainable, the administrative judge erred by comparing his work, as the “only
marine fish biologist,” to the “non-fish biologists.” PFR File, Tab 1 at 9. This
10
Section 4303(b)(1)(A) provides that, when an agency proposes to demote or remove
an employee for unacceptable performance under chapter 43, he is entitled to 30 days’
advance written notice of the proposed action, which identifies the “specific instances
of unacceptable performance by the employee” and “the critical elements of the
employee’s position involved in each instance of unacceptable performance.”
9
cursory argument, however, does not establish error in the administrative judge’s
determination that his performance standards were attainable. Moreover, we
discern no basis to disturb the administrative judge’s decision to credit the
appellant’s supervisor’s testimony that other scientists were able satisfy the same
standards as the appellant, in addition to fulfilling their other duties, without
complaint. See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373
(Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s
demeanor-based credibility determinations “[e]ven if demeanor is not explicitly
discussed”).
¶15 In light of the foregoing, we agree with the administrative judge that the
appellant’s performance standards were valid.
The administrative judge correctly found that the agency warned the
appellant of his performance deficiencies and afforded him an
opportunity to improve.
¶16 The agency next must prove by substantial evidence that it warned the
appellant of the inadequacies of his performance during the appraisal period and
gave him an adequate opportunity to improve. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶¶ 6, 8 (2013). OPM’s regulations governing
performance-based actions under chapter 43 require that, “[a]s part of the
employee’s opportunity to demonstrate acceptable performance, the agency shall
offer assistance to the employee in improving unacceptable performance.”
5 C.F.R. § 432.104. The employee’s right to a reasonable opportunity to improve
is a substantive right and a necessary prerequisite to all chapter 43 actions. Lee,
115 M.S.P.R. 533, ¶ 32. In determining whether an agency has 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 which is sufficient to enable the employee with an opportunity to
demonstrate acceptable performance. Id.10
¶17 Here, the appellant’s supervisor advised him in the January 11, 2018 PIP
memorandum that, as discussed at his October 2017 year-end performance
review, his performance in critical elements 1 and 2 was unsatisfactory and that
he would be placed on a PIP to allow him an opportunity to improve his
performance in each element to at least minimally successful. IAF, Tab 9
at 70-73. She stated that, to be considered minimally successful by the end of the
PIP period, the appellant must do the following: (1) for critical element 1,
independently develop and submit “one panel reviewed proposal for funding from
outside of WRD” for a viable project that provided additional services to parks;
and (2) for critical element 2, develop and obtain his supervisor’s approva l for an
“interagency program initiative” supporting the goals of the NPS. Id. at 72. She
further instructed him to submit weekly status reports regarding his progress,
invited him to stop by her office if he had any questions, and warned him that
failure to improve his performance to minimally successful in critical elements 1
and 2 by the end of the PIP period would be grounds for his removal or demotion.
Id. at 72-73. Although the PIP memorandum stated that the PIP would end on
February 22, 2018, the appellant requested and received a 1-day extension due to
the 1-day Government shutdown, and the PIP ended on February 23, 2018. Id.
at 70; IAF, Tab 8 at 72.
¶18 In the initial decision, the administrative judge found that substantial
evidence established that the agency warned the appellant of his performance
inadequacies in the January 11, 2018 PIP notice, as well as in his October 31,
2017 performance appraisal. ID at 11-12. Regarding the opportunity to improve,
he found that the appellant received 42 days to demonstrate improvement, that
this was a reasonable amount of time given the nature of the PIP, and that he
should have been able, within 42 days, to develop and submit “at least one panel
reviewed proposal” and to develop “at least one approved in teragency program
11
initiative.” 11 ID at 12-14. He found that the appellant’s supervisor provided him
adequate assistance by requiring him to submit weekly status reports regarding
what he was doing to demonstrate improvement, sending him substantive
guidance as to what he needed to do to improve his performance, and offering to
speak to him about his progress. ID at 14-15. He considered but found incredible
the appellant’s claim that he was not informed that he was expected to obtain
panel review of his funding proposal during the PIP period. ID at 17-18. In
addition, he found incredible the appellant’s claim that the status reports took
8 hours per week because he never rebutted his supervisor’s testimony that she
told him not to spend more than 30 minutes per week on them and because it
appeared that he lacked time management skills when it came to this type of task.
ID at 9-10. He thus concluded that the agency proved by substantial evidence
11
In finding that 42 days was a sufficient amount of time for the a ppellant to complete
the 2 requirements of the PIP, the administrative judge considered the fact that the
appellant had been on notice of the deficiencies in his p erformance in critical
elements 1 and 2 since his March 31, 2017 midyear performance review. ID at 13. As
the administrative judge noted, the Board has previously considered prior warnings of
unacceptable conduct in assessing the reasonableness of the opportunity to improve.
Id.; see Mattes v. Department of the Army, 24 M.S.P.R. 477, 480 (1984) (noting in a
chapter 43 appeal that, when the appellant received a prior warning of unacceptable
performance and a reminder that timely submissions were critical, a 30-day
improvement period “would have been sufficient” if the appellant had been given a
reasonable opportunity to demonstrate improvement); see also Ray v. Department of the
Navy, 34 M.S.P.R. 289, 292 (1987) (finding in a chapter 75 appeal that 45 days for an
improvement period was sufficient when the appellant had al so been issued letters of
caution and reprimand). Here, however, it is unclear how prior notice of the appellant’s
performance deficiencies in critical elements 1 and 2, which he received nearly a year
before the beginning of the PIP at issue, relates to the reasonableness of his opportunity
to improve during the PIP period. IAF, Tab 10 at 7-8. In any event, because we agree,
on the basis of other factors, with the administrative judge that the appellant received a
reasonable opportunity to improve, any error in this regard did not affect the outcome
of the appeal. See Panter, 22 M.S.P.R. at 282. Because we do not consider the midyear
performance review in our assessment of the opportunity to improve, we need not
address the appellant’s argument on review that the administrative judge erred in
finding that the midyear performance review placed him on notice that he was “skating
on thin ice” in critical element 2. PFR File, Tab 1 at 23-24.
12
that the appellant received an adequate opportunity to improve his performance.
ID at 15.
¶19 On review, the appellant reiterates his claim that the weekly status reports
took him 8 hours per week and argues that the administrative judge erred in
finding that his supervisor told him not to spend more than half an h our per week
on them. PFR File, Tab 1 at 5-8; ID at 9-10. Although we agree with the
appellant that his supervisor did not testify that she explicitly told him not to
spend more than 30 minutes per week on the report, she did testify that she told
him he was spending too much time on the weekly status reports and that she
estimated they should only take about 30 minutes per week. IAF, Tab 35,
Hearing Transcript (HT) at 209-10 (testimony of the appellant’s supervisor).
Nonetheless, we discern no basis to disturb the administrative judge’s
determination that the appellant’s claim that the status reports required 8 hours
per week is not credible. The appellant has not rebutted his supervisor’s
testimony that she told him he was spending too much time on the status reports
or her testimony that she did not require that the status reports be in any
particular format. Id. In addition, the evidence of record, including the status
report instructions in the PIP memorandum and the content of the reports
themselves, which include a significant amount of recycled material from prior
weeks, establish that they should not have taken the appellant a significant
amount of time each week to complete. ID at 9-10; IAF, Tab 9 at 5-68, Tab 10
at 72. We further agree with the administrative judge that, if t he appellant spent
8 hours per week on the status reports, it represents a failure on his part to
properly manage his time, rather than an overly burdensome requirement that
deprived him of a reasonable opportunity to demonstrate improvement. ID at 10.
¶20 The appellant also argues that the administrative judge erred in finding
incredible his claim that he was unaware of the requirement that he obtain panel
review during the PIP period on the ground that he did not raise this concern in
his response to the proposed removal. PFR File, Tab 1 at 12-13; ID at 17. He
13
argues that it is “irrelevant to the issue’s fundamental credibility” when he elects
to introduce an issue and that there is no statutory basis for requiring that all
issues that could be raised during an appeal be included in the response to the
proposed action. PFR File, Tab 1 at 13-14. Although there is no requirement that
the appellant raise every argument he intends to raise before the Board in his
response to the proposed action, the consisten cy of prior statements is a relevant
consideration in assessing his credibility. Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). Accordingly, the Board has found an appellant’s
allegations less credible when he raised them for the first time on appeal. See,
e.g., Reynolds v. Department of Justice, 63 M.S.P.R. 189, 195 (1994); Abatecola
v. Veterans Administration, 29 M.S.P.R. 601, 607 n.3, aff’d, 802 F.2d 471 (Fed.
Cir. 1986) (Table). In addition, the Board routinely considers an appellant’s
response to the proposed action in assessing claims regarding deficient notice or
confusion with the charges, e.g., Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 11 (2013); Mouser v. Department of Health & Human
Services, 30 M.S.P.R. 619, 624 (1986). We therefore find no basis to disturb the
administrative judge’s determination that the appellant’s claim la cked credibility.
Furthermore, the PIP memorandum specifically stated that, to be considered
minimally successful in critical element 1, the appellant must submit “one panel
reviewed proposal for funding,” i.e., a funding proposal that had been reviewed
by the panel. IAF, Tab 9 at 72. Thus, the appellant knew or should have known
that he was required to obtain panel review of his funding proposal by the end of
PIP period.
¶21 The appellant additionally appears to argue on review that he did not have a
reasonable opportunity to demonstrate improvement because the panel review was
out of his control. PFR File, Tab 1 at 21-22. While we agree that the panel’s
review of the appellant’s funding proposal was not within his exclusive control,
there is no reason here to find that the panel review requirement deprived him of
a reasonable opportunity to improve given that he did not even submit his
14
proposal to the panel within the PIP period. Cf. Sandland v. General Services
Administration, 23 M.S.P.R. 583, 591 (1984) (finding that the appellant did not
receive a reasonable opportunity to improve when, as a result of his supervisor’s
actions during the improvement period, he was unable to perform the work
required to demonstrate improvement); Mattes v. Department of the Army,
24 M.S.P.R. 477, 480 (1984) (finding that the appellant did not receive an
adequate opportunity to improve when the late submi ssion of three reports was
caused by circumstances outside of his control).
¶22 The appellant also argues that the administrative judge failed to consider his
total “compounded” workload during the PIP, which included “one plan, one
proposal, a weekly reporting requirement, and maintaining performance on the
seventeen 2018 performance appraisal components, i.e., a full -time workload plus
the proposal, plan, and reports.” PFR File, Tab 1 at 5-9. We find no merit to the
appellant’s argument that the administrative judge failed to consider his total
workload in finding that he received an adequate opportunity to improve. See
Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984) (recognizing that an administrative judge’s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). The administrative
judge carefully considered the requirements of the PIP and concluded that the
appellant should have been able to complete them within the 42 -day period. The
appellant has not specifically identified what other work he beli eves deprived him
of a reasonable opportunity to demonstrate improvement in critical elements 1
and 2 during the improvement period, and there is no evidence reflecting that he
raised concerns of this nature with his supervisor at any time during the PIP.
Accordingly, notwithstanding the weekly status reports and the appellant’s other
work requirements, we find no basis to disturb the administrative judge’s
determination that 42 days was a sufficient amount of time to complete the
limited tasks required by the PIP, especially in light of the fact that his supervisor
15
clearly advised him of the importance of focusing on those tasks during the PIP
period. IAF, Tab 8 at 92, Tab 9 at 72-73.
¶23 The appellant next argues that the PIP requirements became more extensi ve
over the course of his PIP. PFR File, Tab 1 at 23-24. As set forth above, the
January 11, 2018 PIP memorandum specifically advised the appellant of his
performance deficiencies and of what he must do to be rated minimally successful
in critical elements 1 and 2 by the end of the PIP—namely, that he must complete
one panel-reviewed funding proposal and one approved interagency program
initiative. IAF, Tab 9 at 72. In addition, both the PIP memorandum and 2017
performance appraisal advised the appellant that he must meet all three
components of each critical element and that failure to meet any one of the
components would result in a failure to meet the minimally successful standard.
IAF, Tab 9 at 71, Tab 30 at 8, 11. Ultimately, the appellant’s supervisor found
that the appellant failed to timely complete the tasks specified in the PIP notice
and, for that reason, proposed his removal for failure to achieve an acceptable
level of performance in either critical element 1 or 2. IAF, Tab 8 at 71-75.
Accordingly, we find no merit to the appellant’s claim that the requirements for
him to successfully complete the PIP changed over time.
¶24 In sum, we discern no basis to disturb the administrative judge’s
determination that the appellant received a reaso nable opportunity to improve.
The Board has found that a 30-day PIP may be sufficient to satisfy an agency’s
obligation to provide an employee with a reasonable opportunity to demonstrate
acceptable performance. See, e.g., Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 101 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)
(Table); Wood v. Department of the Navy, 27 M.S.P.R. 659, 662-63 (1985). Here,
the appellant received 42 days to demonstrate improvement by completing
one component of critical element 1 (submit one panel-reviewed funding
proposal) and one component of critical element 2 (one approved interagency
program initiative), and there is no evidence in the record that this length of time
16
unfairly prevented him from demonstrating acceptable performance. See Papritz
v. Department of Justice, 31 M.S.P.R. 495, 499 (1986) (finding that the appellant
received a reasonable opportunity to improve when there was no evidence the
length of the PIP unfairly prevented him from demonstrating acceptable
performance). To the contrary, the record reflects that he received adequate time
and substantial assistance to complete these limited tasks and that, despite being
informed of the minimum requirements to pass the PIP and encouraged to discuss
his progress with his supervisor, he never requested an extension or expressed
any need for additional time. See id.¶25 In light of the foregoing, we agree with the administrative judge that the
agency met its burden to show by substantial evidence that it warned the
appellant of his performance deficiencies and afforded him an adequate
opportunity to improve.
The administrative judge correctly found that the appellant’s
performance remained inadequate in at least one critical element .
¶26 Lastly, the agency must show by substantial evidence that, after an adequate
improvement opportunity period, the appellant’s performance remained
unacceptable in at least one critical element. Towne, 120 M.S.P.R. 239, ¶ 6. A
detailed proposal notice can be considered part of an agency’s valid proof of i ts
allegations in a chapter 43 case; however, the proposal notice alone is insufficient
to meet the agency’s burden of proof and instead must be accompanied by
corroborating evidence. Thompson v. Department of the Army, 122 M.S.P.R. 372,
¶ 12 (2015). When an employee is removed on the basis of fewer than all the
components of a performance standard for a critical performance e lement, the
agency must present substantial evidence that the employee’s performance
warranted an unacceptable rating on the performance element as a whole.
Leonard v. Department of Defense, 82 M.S.P.R. 597, 599 (1999).
17
Critical Element 1
¶27 As noted above, the PIP memorandum stated that, to obtain a rating of
minimally successful in critical element 1, the appellant was required to develop
and submit “one panel reviewed proposal” for funding for a viable project that
provided additional services to parks. IAF, Tab 9 at 72. To fulfill this
requirement, the appellant sent the Division Chief a funding proposal for a Nature
Fund “Fishscaping” project to “develop scientific capacity in fish echosounding”
at 8:00 p.m. on February 22, 2018. IAF, Tab 8 at 81-85. In the proposed removal
notice, the appellant’s supervisor stated that, because he emailed his proposal to
the Division Chief at 8:00 p.m. on the night before his PIP deadline, there was no
time to obtain approval from the three supervisors who needed to review the
proposal before submitting it for panel review. IAF, Tab 7 at 72. In addition, she
noted that the appellant’s late submission presumed that the panel “would
actually be able to review [his] document with such little notice.” Id. Thus, she
concluded that the appellant’s performance in critical element 1 was
unsatisfactory. Id. The administrative judge found that the agency proved that
the appellant’s performance remained unacceptable in critical element 1 because
he failed to fulfill his obligation to develop and submit at least one
panel-reviewed proposal within the PIP period. ID at 16-18.
¶28 On review, the appellant argues that the administrative judge erred in
finding that he did not improve his performance in critical element 1, ostensibly
because he should not have been required to obtain the supervisory signatures and
panel review during the PIP period. PFR File, Tab 1 at 12-14. As discussed
above, however, we find unavailing the appellant’s assertion that he was not
aware of the requirement that he obtain panel review during the improvement
period, as well as his alternative argument that he should not have been required
to do so. While we acknowledge that the time required for a panel review is to
some extent out of the appellant’s hands, he did not even submit the completed
proposal to the panel for its review within the PIP period. Rather, he waited unt il
18
8:00 p.m. on the night before the end of his PIP to request the first of the three
supervisory signatures required before he could submit his funding proposal to
Nature Fund for panel review. 12 IAF, Tab 8 at 81, Tab 9 at 72. Accordingly, we
agree with the administrative judge that the agency established by substantial
evidence that the appellant failed to demonstrate acceptable performance in
critical element 1.
Critical Element 2
¶29 To be considered minimally successful in critical element 2, the PIP
memorandum stated that the appellant must, by the end of the PIP period, have
developed and obtained his supervisor’s approval for an interagency program
initiative with goals, objectives, activities, and expected outcomes that he would
be able to start working on upon final approval. IAF, Tab 9 at 72. The appellant
submitted two proposals to his supervisor in an attempt to fulfill this requirement.
IAF, Tab 8 at 47, 73. First, on January 26, 2018, he proposed a “Fundamental
Fishing Information pilot project and Program Initiative”; however, his supervisor
informed him on January 26 and 29, and February 7, 2018, that his proposal was
not interagency and would not satisfy the requirements of his PIP. Id. at 92-99.
Second, on the evening before the end of his PIP, he emailed his supervisor
requesting approval of an “ecosystem character and fishing impacts interagency
program initiative.” Id. at 77-79. Although it was the last day of the appellant’s
PIP, his supervisor responded the next day explaining that this idea was not
interagency and suggesting they “discuss another option and timeframe for
addressing this component of [his] assignment.” Id. at 77. The appellant did not
respond, testifying at the hearing that he did not open his email until after
February 23, 2018, because he was busy working on his last status report. HT
at 148 (testimony of the appellant). In the proposed removal notice, the
12
As the appellant acknowledged in his email to the Division Ch ief, a Nature Fund
requires that funding proposals have three supervisory signatures before being
submitted to the panel. IAF, Tab 8 at 81.
19
appellant’s supervisor reiterated that neither of the appellant’s proposals involved
“interagency” participation and thus found his performance in critical element 2
to be unsatisfactory. IAF, Tab 8 at 73-74.
¶30 In the initial decision, the administrative judge found that substantial
evidence supported the appellant’s supervisor’s determination that the appellant’s
two ideas were not interagency and that he failed to fulfill the requirements of
critical element 2. ID at 18-20. In so finding, he observed that the appellant was
negligent under the circumstances by failing to check his email on February 23,
2018. ID at 19.
¶31 On review, the appellant argues that administrative judge failed to consider
his argument that the PIP notice did not inform him that he was required to obtain
agreement from a partner agency to work on his plan and that his supervisor
informed him of this requirement only after he submitted his February 22, 2018
idea. PFR File, Tab 1 at 15; IAF, Tab 38 at 17. Although the administrative
judge did not address this argument, such error is harmless as the argument is
clearly without merit. See Panter, 22 M.S.P.R. at 282. The PIP notice explicitly
advised the appellant that he must obtain his supervisor’s approval for an
“interagency program initiative,” i.e., a program initiative that involves another
agency. IAF, Tab 9 at 72. Contrary to the appellant’s characterization of his
supervisor’s rationale for finding he did not satisfy this requirement, she did not
require him to have approval from a partner agency prior to the end of the PIP
period; rather, she required that his program initiative idea involve collaboration
with another agency. IAF, Tab 8 at 73. Although she stated in the proposed
removal notice that the appellant’s second proposal identified “no one else who
had agreed to participate in the initiative,” this observation was simply one of a
number of things his proposal failed to do, in addition to not identifying another
agency for collaboration, partner tasks, or roles or functions for another agency.
Id. Finally, she noted that, “[a]ll of the listed tasks and outcomes were tasks that
you would work on, and thus there was no ‘interagency’ participation.” Id.
20
Accordingly, we find no merit to the appellant’s contention that the PIP notice
did not place him on notice of the requirement that his program initiative proposal
involve participation by another agency and agree with the administrative judge
that substantial evidence supports the agency’s finding that the appellant’s
submissions did not satisfy this criterion.
¶32 The appellant also challenges on review the administrative judge’s
determination that he was negligent under the circumstances, arguing that he had
to turn in his final status report on February 23, 2018, and that he believed the
deadline for the program initiative was February 22, 2018. PFR File, Tab 1
at 10-11. In other words, he appears to argue that it was reasonable to spend his
workday on February 23, 2018, on his final status report without checking his
email because it was too late to make any further submissions towards successful
completion of his PIP. Even if the appellant believed that February 22, rather
than February 23, 2018, was the last day of his PIP period, we agree that he acted
in a negligent manner in failing to check his emails on a workday, which resulted
in him not seeing his supervisor’s email informing him that his initiative was not
interagency and offering to “discuss another option and timeframe.” Nonetheless,
the finding of negligence is not material to the outcome here because, as
discussed above, the appellant failed to obtain his supervisor’s approval for an
interagency program initiative before the end of the PIP period, despite her
numerous emails, expressed concerns, and offers to provide additional assi stance
and to work together to come up with an interagency program initiative idea.
IAF, Tab 8 at 92-99. Thus, even if the administrative judge erred in finding that
the appellant acted in a negligent manner, such error provides no basis to disturb
the initial decision. See Panter, 22 M.S.P.R. at 282.
A rating of unsatisfactory in one component of a critical
element is sufficient for an overall unsatisfactory rating.
¶33 The appellant further argues that the administrative judge erred in finding
that his performance was unacceptable in critical elements 1 and 2 because he
21
successfully completed two of the three components of each critical element.
PFR File, Tab 1 at 21-22; IAF, Tab 38 at 6-7. However, as the administrative
judge correctly observed, the performance standards made clear that the appellant
must meet “all three components” of the critical element and that a “[f]ailure to
meet any one of the components will result in an overall failure to meet the
minimally successful standard.” ID at 16, 18; IAF, Tab 9 at 71, Tab 30 at 8, 11.
Accordingly, we discern no basis to disturb the administrative judge’s
determination that the agency provided substantial evidence tha t the appellant
failed to develop and submit one panel-reviewed funding proposal and one
approved interagency program initiative and that he therefore failed to meet the
minimally successfully standard for critical elements 1 and 2 as a whole, even if
he satisfactorily completed the other components of the critical elements. See
Leonard, 82 M.S.P.R. 597, ¶ 6.
We must remand this appeal in light of Santos.
¶34 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings regarding the agency proving the elements
described above, we must remand this appeal for the agency to prove an
additional element of its charge. During the pendency of the petition for review
in this case, the United States Court of Appeals for the Federal Circuit held in
Santos, 990 F.3d at 1360-61, 1363, that in addition to the five elements of the
agency’s case set forth above, the agency must also “justify the institution of a
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 administrative judge shall accept
22
argument and evidence on this issue, and shall hold a supplemental hearing if
appropriate. Id., ¶ 17.
On remand, the administrative judge should analyze the appellant’s affirmative
defense that the agency violated the collective bargaining agreement (CBA) under
the harmful error standard.
¶35 In the initial decision, the administrative judge found that the agency did
not violate the appellant’s due process rights by giving him 15 days to respond to
the notice of proposed removal and prohibiting him from entering his duty station
and contacting his coworkers during the response period because he received a
meaningful opportunity to respond to the proposed removal. ID at 20-21. He
also found that, even if the agency violated the CBA by giving the appellant only
42 days to demonstrate improvement and 15 days to respond to the notice of
proposed removal, he failed to show that such violation was harmful. ID
at 13-14, 21-22. Accordingly, he concluded that the appellant failed to establish
any affirmative defense.
¶36 On review, the appellant does not challenge, and we discern no basis to
disturb, the administrative judge’s determination that he did not prove an y due
process violation or that the 15-day response period constituted a harmful
procedural error. However, he reiterates his argument that he should have
received a 90-day improvement period pursuant to the CBA. PFR File, Tab 1
at 23.
¶37 In finding the appellant failed to prove this claim, the administrative judge
relied on his determination that the agency met its burden to prove the charge
including, as relevant here, that the length of the PIP was reasonable. ID
at 13-14. We find his reliance on the agency’s proof of its charge to be in error
because the requirement for the agency to prove that it afforded an appellant with
a reasonable opportunity to improve differs from the appellant’s burden to prove
harmful error. See Lee, 115 M.S.P.R. 533, ¶ 32 (discussing the relevant factors in
determining if the agency afforded an appellant a reasonable opportunity to
23
improve). The harmful error standard applies to allegations of agency error in
applying collective bargaining agreements in performance actions brought under
chapter 43. DeSousa v. Agency for International Development, 38 M.S.P.R. 522,
526 (1988). When an appellant alleges that the agency committed a procedural
error, he bears the burden of proving by preponderant evidence that the agency’s
procedural error caused substantial harm to his rights, i.e., that the agency would
likely have reached different conclusion in the absence of the error. 13 Wood,
27 M.S.P.R. at 663; 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C). A mere showing
that there was a possibility of prejudice is insufficient. Wood, 27 M.S.P.R.
at 663.
¶38 Here, the appellant argued that the agency violated the CBA by not
affording him at least 90 days to demonstrate improvement and th at “[a]nother
few days beyond the 42-day PIP would have made a significant difference in the
outcome.” IAF, Tab 38 at 7-8. Specifically, he alleged that, if he had been given
a longer PIP period, he would have been able to obtain the three signatures
required to approve his proposal and could have addressed his supervisor’s
concerns with the interagency program initiative program idea that he sent to
her on February 22, 2018. Id. at 8. He also claimed that, if he had been given a
90- or 180-day PIP period, he “would have considered continuing to seek
approval for the Fundamental Fishing Information pilot project and Program
Initiative by further addressing his supervisor’s many questions.” Id. He alleges
that he did not do so during his 42-day PIP because, given his supervisor’s
questions and comments, he decided to spend the last 15 days of his PIP
“pursuing a different independent approach.” Id. at 8-9.
¶39 The agency disagrees with the appellant’s contentions. It argues, in
essence, that the appellant failed to show that if he was on the PIP for a longer
13
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
24
period, he likely would have met the PIP requirements. PFR File, Tab 3 at 10-11.
It points to testimony and documentary evidence reflecting that the appellant was
on notice that his performance in critical elements 1 and 2 required improvement
as early as March 2017. PFR File, Tab 3 at 10-11. Thus, this issue is in dispute
and resolution may require credibility determinations. Such determinations
should be made in the first instance by the admini strative judge who conducted
the hearing. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 18
(2016). Therefore, on remand, the administrative judge should make findings
regarding the appellant’s claim that the agency violated the CBA , applying the
harmful error standard. See Wood, 27 M.S.P.R. at 663.
¶40 In conclusion, we must remand this decision in light of Santos and for a
new determination regarding the appellant’s claim that the agency violated the
CBA. On remand, the administrative judge shall accept argument and evidence
on whether the agency proved by substantial evidence that the appellant’s pre -PIP
performance was unacceptable, and shall hold a supplemental hearing on this
issue if appropriate. Lee, 2022 MSPB 11, ¶ 17. The administrative judge shall
then issue a new initial decision consistent with Santos and the guidance above.
See id. If the agency makes the additional showing required under Santos on
remand, the administrative judge may incorporate h is prior findings on the other
elements of the agency’s case and the appellant’s other 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-PIP performance affects the administrative judge’s analysis of the appellant’s
affirmative defenses, he 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).
25
ORDER
¶41 For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.