D'Anna Laminack v. Department of the Interior ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
D’ANNA LAMINACK, DOCKET NUMBER
Appellant, DA-0432-20-0177-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: July 6, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Richard R. Renner, Esquire and Sarah Martin, Esquire, Washington, D.C.,
for the appellant.
Nanette Gonzales, Lakewood, Colorado, for the agency.
Okwede Okoh, Washington, D.C., 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 agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the agency’s removal
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
action. For the reasons discussed below, we GRANT the petition for review,
VACATE the initial decision, DENY the cross petition for review, and REMAND
the case to the Dallas Regional Office for further adjudication in accordance with
this Remand Order and Santos v. National Aeronautics & Space Administration,
990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The agency removed the appellant from her position of Environmental
Education Specialist, under the authority of 5 U.S.C. chapter 43, based on her
failure to demonstrate acceptable performance in two critical elements of her
Employee Performance Appraisal Plan (EPAP). Initial Appeal File (IAF), Tab 1
at 8-9, Tab 24 at 26-29, 65-70, Tab 56 at 4. The appellant’s EPAP set forth,
within each of the five critical elements, the following four rating levels:
Unacceptable; Fully Successful; Exceeds Expectations; and Outstanding. IAF,
Tab 24 at 140-60.
¶3 On appeal to the Board, the appellant asserted, among other things, that the
agency’s performance appraisal system was not approved by the Office of
Personnel Management (OPM). IAF, Tab 50 at 7-8, Tab 54 at 2. She also
claimed that the action was based on reprisal for equal employment opportunity
(EEO) activity, disability discrimination, and reprisal for whistleblowing activity,
and that the agency violated her due process rights. IAF, Tab 1 at 4, Tab 13
at 5-19, Tab 18 at 2, Tab 50 at 16. During the processing of this case, the
administrative judge issued an order notifying the parties of a question as to
“whether the appellant’s FY [Fiscal Year] 2019 EPAP complies with the
performance appraisal system that OPM approved, and, if not, the impact of this
issue on the agency’s performance-based action.” IAF, Tab 62 at 2. The
administrative judge afforded the parties an opportunity to submit written briefs
on the issue. Id. Both parties filed responses to the order. IAF, Tabs 63-65.
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¶4 After a hearing, the administrative judge reversed the removal action. IAF,
Tab 66, Initial Decision (ID) at 1, 36. She found that the agency did not prove by
substantial evidence that OPM approved its performance appraisal system. ID
at 12-15. In this regard, the administrative judge found that the OPM Form 1631,
Performance Appraisal System Description, completed by the agency and
approved by OPM, indicated that the agency had marked, or selected, all
summary level patterns for possible use. ID at 13. A summary level pattern is an
ordered category of performance levels, from Level 1 to Level 5, with 1 being the
lowest and 5 being the highest. IAF, Tab 57 at 5. Each pattern identifies the
number and category of summary levels used by an appraisal program. Id. Here,
the agency marked or selected Patterns A (which includes only two summary
levels) through H (which includes five summary levels). Id. The administrative
judge found that the appellant’s FY 2019 EPAP was consistent with the system in
that the EPAP specified four levels for the summary rating (Outstanding, Exceeds
Expectations, Fully Successful, and Unacceptable), and thus appeared to use
Pattern E, one of the selected patterns. ID at 13.
¶5 Nevertheless, the administrative judge also noted that the agency was
required to specify both the minimum and maximum number of element appraisal
levels that it would use to appraise an employee’s performance under each
element. ID at 13. Here, the OPM Form 1631 indicated that there would be a
minimum of five appraisal levels and a maximum of five appraisal levels . IAF,
Tab 57 at 5. The administrative judge therefore found that “the appellant’s
FY 2019 EPAP fails to comply with the performance appraisal system that OPM
approved in that it does not include the required minimum number of appraisal
levels.” ID at 13. The administrative judge acknowledged the agency’s argument
and evidence indicating that it made a clerical error on the form regarding the
minimum number of appraisal levels, and that the clerical error did not reflect its
intent in seeking OPM approval for the change. ID at 14. Nevertheless, she held
that there was no record evidence showing that the agency meant “4” when it
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entered “5” as the minimum number of appraisal levels, or that OPM approved
the agency to implement four element appraisal levels. ID at 14. The
administrative judge found that, even if the agency made an unintentional error
on the form, “this does not obviate the fact that the appellant’s 2019 EPAP fails
to comply with the performance appraisal system approved by OPM.” ID at 14.
Thus, she found that the agency failed to establish by substantial evidence that,
with regard to the appellant’s EPAP, it had an OPM-approved performance
appraisal system and that OPM approved the change from a five -tier to a four-tier
system. ID at 15. Finally, the administrative judge found that the appellant did
not prove her claims of a denial of due process, reprisal for EEO activity,
disability discrimination, and reprisal for whistleblowing. ID at 10-11, 16-36.
¶6 The agency has petitioned for review of the initial decision, the appellant
has responded to the petition, and the agency has replied to the appellant’s
response. Petition for Review (PFR) File, Tabs 1, 11, 13. The appellant has
cross petitioned for review, to which the agency responded. 2 PFR File, Tabs 11,
17.
ANALYSIS
¶7 In a performance-based action taken under 5 U.S.C. chapter 43, the agency
bears the burden of proving the following by substantial evidence: 3 (1) OPM
2
The appellant’s cross petition for review, which we have denied, primarily addresses
issues relating to her affirmative defenses. PFR File, Tab 11 at 22-48. As set forth
below, because we vacate the initial decision, including the administrative judge’s
findings on the appellant’s affirmative defenses, the administrative judge may consid er
the appellant’s arguments in this regard, as well as the agency’s contentions in its
response to the cross petition for review, on remand.
The appellant also has filed a motion for leave to file a written transcript of the hearing
in this case prepared by a private, independent, professional court reporter. PFR File,
Tab 9. The audio recording of the hearing is the official hearing record. 5 C.F.R.
§ 1201.53(a). Under the circumstances of this case, we deny the appellant’s motion.
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).
5
approved its performance appraisal system and any significant changes thereto;
(2) the agency communicated to the appellant the performance standards and
critical elements of her position; (3) her performance standards are valid; (4) the
agency informed her of the inadequacies of her performance and gave her a
reasonable opportunity to demonstrate acceptable perfo rmance; and (5) her
performance on one or more of the critical elements of her position remained
unacceptable at the end of the improvement period. Lee v. Environmental
Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010).
¶8 Congress provided for agency performance appraisal systems and their
approval by OPM in the Civil Service Reform Act of 1978, Pub. L. No. 95 -454,
92 Stat. 1111. Adamsen v. Department of Agriculture, 563 F.3d 1326, 1330 (Fed.
Cir.), modified on other grounds on rehearing, 571 F.3d 1363 (Fed. Cir. 2009).
Federal agencies are required to develop performance appraisal systems that
provide for periodic appraisals of job performance of employees and permit
removing employees who continue to have unacceptable performance , but only
after an opportunity to demonstrate acceptable performance. Id. OPM “shall
review each performance appraisal system developed by an agency . . . and
determine whether the performance appraisal system meets the requirements of
this subchapter.” 5 U.S.C. § 4304(b)(1). If OPM “determines that a system does
not meet the requirements of this subchapter . . . [ it] shall direct the agency to
implement an appropriate system or to correct operatio ns under the system, and
any such agency shall take any action so required.” 5 U.S.C. § 4304(b)(3).
¶9 OPM’s implementing regulations provide further guidance regarding agency
performance appraisal systems. An agency appraisal system shall establish
agencywide policies and parameters for the application and operation of
performance appraisals within the agency for employees covered by the system.
5 C.F.R. § 430.204(b). At a minimum, an agency system shall, among other
things, “[s]pecify the flexibilities an agency program established under the system
has for setting . . . [t]he number(s) of performance levels at which critical and
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non-critical elements may be appraised,” and “[t]he pattern of summary levels
that may be assigned in a rating of record.” 5 C.F.R. § 430.204(b)(3)(iii)-(iv).
Agency performance appraisal systems may include between two and five
summary rating levels. Jackson-Francis v. Office of Government Ethics,
103 M.S.P.R. 183, ¶ 6 (2006); 5 C.F.R. § 430.208(d). Agencies shall submit to
OPM for its approval a description of its appraisal system, 5 C.F.R. § 430.209(a),
which OPM shall review and approve, 5 C.F.R. § 430.210(a).
¶10 An agency must implement performance appraisal plans that conform to
requirements set forth in OPM’s approval of its performance appraisal system.
See Salmon v. Social Security Administration, 663 F.3d 1378, 1384-85 (Fed. Cir.
2011) (finding that the employee’s performance plan was consistent with the
framework approved by OPM); 5 C.F.R. § 430.205(a) (requiring each agency to
establish at least one appraisal program “of specific procedures and requirements
to be implemented in accordance with the applicable agency appraisal system ”).
¶11 An agency policy statement, like the agency’s completed OPM Form 1631
here, that is neither published in the Federal Register nor binding on the public,
only binds the agency if it so intended. Farrell v. Department of the Interior,
314 F.3d 584, 590 (Fed. Cir. 2002). The primary consideration in determining
the agency’s intent is whether the text of the statement indicates that it was
designed to be binding on the agency. Id. at 591. We find that the provisions set
forth in the OPM Form 1631, which do not relate to members of the public, are
binding on the agency because the agency so intended and the form directly
implements and interprets statutory and regulatory provisions, namely, certain
provisions relating to 5 U.S.C. § 4304(b)(1) and 5 C.F.R. part 430, subpart B.
¶12 Further, because the form is “an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law
or policy or describing the . . . procedure . . . or practice requirements of an
agency,” we treat the form as a “rule,” and apply the standards for in terpreting
such rules developed under the Board’s case law. 5 U.S.C. § 551(4) (defining the
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term “rule” under the Administrative Procedures Act (APA) as set forth here); see
Leiser v. Department of Justice, 64 M.S.P.R. 543, 547-48 (1994) (treating a
provision of the U.S. Attorneys’ Manual as an interpretive rule because it
comported with and interpreted statutory authority given to the Attorney
General), aff’d, 64 F.3d 678 (Fed. Cir. 1995) (Table), and overruled on other
grounds by Hamlett v. Department of Justice, 90 M.S.P.R. 674, ¶ 14 (2002);
Brooks v. Office of Personnel Management, 59 M.S.P.R. 207, 210 n.4 (1993)
(treating as rules certain Federal Personnel Manual provisions relating to military
service that is creditable towards civilian service), superseded by statute on other
grounds as recognized in Johnson v. Office of Personnel Management,
93 M.S.P.R. 265, ¶ 5 n.5 (2003). 4 Agencies must comply with the procedures
they set forth in their own rules or regulations. Ulep v. Department of the Army,
120 M.S.P.R. 579, ¶ 4 (2014).
¶13 The appellant asserted below that the agency presented no evidence from
anyone at OPM establishing what OPM understood the agency’s performance
appraisal system to be when OPM approved it. PFR File, Tab 65 at 4 -5. She also
asserted that the long-standing rule of contracts is that ambiguities are construed
against the drafter, and that here, the agency drafted the OPM Form 1631; thus,
the appellant claimed that any ambiguity regarding the minimum number of
performance levels should be construed against the agency. Id. at 5-6.
¶14 These arguments by the appellant presume that the OPM Form 1631 is a
contract. See, e.g., Harris v. Department of Veterans Affairs, 142 F.3d 1463,
4
In Hamlet v. United States, 63 F.3d 1097, 1105 (Fed. Cir. 1995), the court held that a
statement in a Federal personnel manual or handbook, regardless of whether it was
published under the standards set out in the APA, is a regulation entitled to the force
and effect of law if the following requirements are met: (1) the promulgating agency
was vested with the authority to create such a regulation; (2) the promulgating agency
conformed to all procedural requirements, if any, in promulgating the regulation; (3) the
promulgating agency intended the provision to establish a binding rule; and (4) the
provision does not contravene a statute. To the extent that the court may require these
more extensive elements, we find that they are met in this case.
8
1467 (Fed. Cir. 1998) (examining the parties’ understanding in interpreting the
words of a settlement agreement); Weber v. Department of Agriculture,
86 M.S.P.R. 25, ¶ 12 (2000) (considering the respective meanings given to the
words by the parties in interpreting a settlement agreement ). Although
representatives from the agency and OPM signed the form, their signatures do not
reflect the making of a contract. To have an enforceable contract, there must be
consideration, i.e., a performance or a return promise that must be bargained for
and does not involve the performance of a preexisting duty. Black v. Department
of Transportation, 116 M.S.P.R. 87, ¶ 17 (2011); see Beasley v. Office of
Personnel Management, 45 M.S.P.R. 333, 335-36 (1990) (holding that the
formation of a binding contract requires a bargain in which there is a
manifestation of mutual assent to an exchange and a consideration). Here, the
appellant has identified no such consideration, nor is there a manifestation of
mutual assent to an exchange between the agency and OPM. Instead, the
agency’s submission of the form to OPM and OPM’s approval of the form merely
carry out the requirements of the applicable statutes and regulations for the
establishment of an agency performance appraisal system. Here, the agency head
or designee “certif[ied]” with a signature that the appraisal system set forth in the
form, all its related appraisal programs, and the use of the appraisal results
conformed or would conform to applicable law and regulation and represented a
“request” that OPM approve the appraisal system. IAF, Tab 57 at 6. The
signature of OPM’s “[a]pproving [o]fficial” merely reflects that “[t]his
performance appraisal system has been reviewed in accordance with 5 U.S.C.
§ 4304(b)(1) and conforms to the requirements specified in 5 CFR part 430,
subpart B.” Id. Thus, we do not apply contract principles in ascertaining the
meaning of the form in question.
¶15 Having found that the OPM Form 1631 functions as a “rule” for purposes of
this appeal, we note that the rules of statutory construction apply wh en the Board
interprets an agency rule or regulation. Foret v. Department of the Army,
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105 M.S.P.R. 437, ¶¶ 3, 7, 9 (2007) (applying the rules of statutory construction
to an agency’s drug testing procedures); Wilburn v. Office of Personnel
Management, 60 M.S.P.R. 19, 23 (1993) (applying a rule of statutory construction
in interpreting OPM’s guidance in the Federal Personnel Manual) ; see Roberto v.
Department of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006); Spigner v.
Department of the Air Force, 96 M.S.P.R. 275, ¶ 14 (2004), aff’d, 143 F. App’x
336 (Fed. Cir. 2005); cf. Special Counsel v. Campbell, 58 M.S.P.R. 170, 180
(1993) (using the rules of statutory construction to interpret the meaning of
regulations), aff’d, 27 F.3d 1560 (Fed. Cir. 1994); Harris v. Department of State,
24 M.S.P.R. 514, 517 (1984) (finding that general rules of statutory interpretation
may be used in determining the meaning of regulations), aff’d, 785 F.2d 320 (Fed.
Cir. 1985) (Table).
¶16 The starting point for interpreting the OPM Form 1631, therefore, is the
language of the document itself to determine its plain meaning. Roberto,
440 F.3d at 1350. If the language is clear and unambiguous, the inquiry ends
with the plain meaning. Id. A statute, rule, or regulation should be construed to
give effect to every provision and must be construed in harmony, if possible.
Ochoa v. Department of the Navy, 65 M.S.P.R. 39, 44 (1994). A section of a
statute should not be read in isolation from the context of the whole act, and a
court, in interpreting legislation, must not be guided by a single sentence or part
of a sentence, but should look to the provisions of the whole law, and to it s object
and policy. Joyce v. Department of the Air Force, 83 M.S.P.R. 666, ¶ 14 (1999),
abrogated on other grounds by Cole v. Department of Justice, 90 M.S.P.R. 627(2001). If, however, the rule is silent or ambiguous, deference is given to the
agency’s own interpretation, particularly when it is reasonable and does not
conflict with the governing statute, even if other interpretation s are possible.
Roberto, 440 F.3d at 1350; see Winns v. U.S. Postal Service, 124 M.S.P.R. 113,
¶ 13 (2017), aff’d sub nom. Williams v. Merit Systems Protection Board, 892 F.3d
1156 (Fed. Cir. 2018); Sturdy v. Department of the Army, 88 M.S.P.R. 502,
10
¶¶ 18-19 (2001) (giving deference to OPM’s statement in an advisory opinion
when the governing statute was silent and the implementing regulations were
ambiguous on the issue to be resolved); Phillips v Department of the Interior,
95 M.S.P.R. 21, ¶ 9 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005). A
regulation is ambiguous when it is susceptible to more than one plausible reading.
American Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir. 2008);
see Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609, ¶ 18 (2001) (A
statute is ambiguous if it is susceptible of differing, reasonable interpretations.).
¶17 Here, section 3 of the OPM Form 1631, Summary Levels, provides that
“[e]ach appraisal program under this system will use one, but only one, of the
following patterns for assigning summary levels (mark all that apply).” IAF,
Tab 57 at 5. The agency checked all of the patterns, including Pattern E, which
corresponds to the four summary levels used by the agency in this case. Id. In
response to the section 3 prompt, “[o]ther restrictions or requirements for using
patterns or deriving summary levels,” the agency marked “none.” Id. Section 4
of the form, Element Appraisal, provides as follows: “[w]ithin the following
parameters, each appraisal program will provide for establishing employee
performance plans that include at least one critical element and, where applicable,
non-critical element(s).” Id. It, too, indicates that there are no “[r]estrictions or
requirements,” yet it indicates that the minimum number of appraisal levels will
be “5,” while the maximum number of appraisal levels is “5.” Id. We find that
the OPM Form 1631 is internally inconsistent and ambiguous , as it appears in one
section that OPM approved the agency to use all of the available patterns,
including Pattern E, while another section seems to indicate approval of only
Pattern H, which is the sole pattern that includes five summary levels. It is
therefore susceptible of differing, reasonable interpretations.
¶18 When aid to the construction of the meaning of statutory words is available,
there is no law that forbids its use. Special Counsel v. Campbell, 58 M.S.P.R.
at 180. When the language of a statute is ambiguous, for example, it is
11
appropriate to consult the legislative history to determine Congressional intent.
Williams v. Department of the Army, 83 M.S.P.R. 109, ¶ 11 (1999). Similarly, the
Board may rely on the history of a regulation as an aid to its interpretation.
Klamm v. Department of Defense, 97 M.S.P.R. 276, ¶ 8 (2004). In addition to the
language of a statute, the Board may examine the statements of members of
Congress interpreting the statute, and it is the Board’s task to interpret the words
of a statute in light of the purpose Congress sought to serve. Swentek v. Office of
Personnel Management, 76 M.S.P.R. 605, 611 (1997); Senior Executives
Association v. Office of Personnel Management, 67 M.S.P.R. 643, 651 (1995).
¶19 Here, the history of the approval process for the OPM Form 1631 , as well as
the statements of those involved in seeking such approval , provide a useful aid to
our interpretation of this ambiguous document. In this regard, we recognize that
the Board has suggested that a “lack of clarity” regarding OPM’s approval of an
agency’s appraisal system may be resolved by “examination of the OPM
Form 1631,” along with an affidavit or declaration from a credible witness with
actual knowledge of the approval. Adamsen v. Department of Agriculture,
116 M.S.P.R. 331, ¶¶ 13-14 (2011). Indeed, probative hearsay evidence in this
regard may meet the substantial evidence standard. Id., ¶ 14. Under appropriate
circumstances, an unrebutted declaration under penalty of perjury may prove the
facts it asserts. Id., ¶ 15.
¶20 The record reflects that on June 29, 2018, the same date on which the
agency head or designee signed the OPM Form 1631, the agency’s Acting Deputy
Assistant Secretary for Human Capital and Diversity wrote a letter to the Director
of OPM requesting approval of the agency’s “new performance appraisal system,”
which was reflected in the “enclosed OPM Form 1631.” IAF, Tab 64 at 9. The
letter indicates that the form “amends [the agency’s] current appraisal system,”
which had previously been approved by OPM in 2005, and “affords [the agency]
the greatest flexibility for designing an effective performance management
program.” Id. The letter further states that the agency sought only two changes,
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one of which was to “the rating patterns (selecting all patterns for maximum
flexibility).” 5 Id. It emphasizes that “the change in rating pattern is the
motivating factor behind our seeking approval for a new system, as the prior
approval was for a Pattern H system only and the agency is intending to move to
Pattern E.” Id. Pattern H has five performance levels, while Pattern E has four.
Id. at 10. The letter concludes by informing OPM that the agency intends to
implement the new system and program at the start of the next performance year
in October 2018, pending approval. Id. at 9.
¶21 OPM approved the performance appraisal system by signature on the OPM
Form 1631 on August 14, 2018, and submitted a letter on the same day to the
agency indicating that it was granting the agency’s request “by letter dated
June 29, 2018” for approval of its performance appraisal system. IAF, Tab 57
at 4. We find that this reference to the agency’s June 29, 2018 cover l etter
indicates that OPM was aware that the agency’s request was intended to move
from Pattern H to Pattern E. The record also includes an unrebutted declaration
from the Director of the agency’s Division of Workforce Relations within the
Office of Human Capital. IAF, Tab 64 at 13-14. She avers that, in the summer of
2018, she worked with colleagues to develop the new appraisal system and helped
update the OPM Form 1631 for submission and approval by OPM . Id. at 13. The
Director indicated that “[t]he updated OPM form 1631 would depart from the
previously submitted form by expanding the selection of the rating patterns,” and
that the agency “proposed selection of all rating patterns instead of the previous
selection of only rating pattern H.” Id. She further explained that the reason for
the selection of all rating plans was to allow the agency maximum flexibility for
developing performance plans, with the intention that the agency would apply
only rating Pattern E for fiscal year 2019. Id. Finally, the Director wrote that,
5
The other change the agency sought was to remove references to Board o f Contract
Appeals judges from its system. IAF, Tab 64 at 9. That requested change is not at
issue in the instant appeal; therefore, we will not discuss it further.
13
when the form was edited by the agency, the only change made , as relevant here,
was the selection of all rating patterns in section 3. Id. at 14. “No other changes
were made to the document as our primary intention was to address the rating
pattern at that time.” Id.¶22 Based upon our review of the above evidence and the circumstances behind
the approval process for the agency’s performance appraisal system , we interpret
the OPM Form 1631 as approving the agency’s use of Pattern E, which was the
pattern used in this case. We therefore find that the agency has proven by
substantial evidence that OPM approved the performance appraisal system under
which the agency took the performance-based action in this case. 6 In any event,
courts may permit the substitution of one word for another when, among other
things, a word is the obvious result of a clerical error. 2A Shambie Singer &
Norman Singer, Sutherland Statutory Construction § 47:36 (7th ed. 2021). Here,
it is clear that the number “5” in section 4 of the OPM Form 1631, in the space
for the minimum number of appraisal levels, is a clerical error that should have
been a number “2” to provide maximum flexibility.
¶23 Having found that OPM approved the agency’s appraisal system, we remand
this appeal for consideration by the administrative judge of whether the agency
met its burden on the other elements required to prove its case.
Remand is also necessary to afford the parties an opportunity to submit evidence
and argument regarding whether the appellant’s placement on a Performance
Improvement Plan (PIP) was proper.
¶24 During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the 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 by substantial
6
Put another way, there would therefore be no basis for finding on remand that the
appellant’s performance standards were invalid under the third element of the Lee test
set forth above on the ground that they did not comply with the performance appraisal
system approved by OPM.
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evidence 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. Although the record in this appeal may already
contain evidence concerning the appellant’s performance leading up to the PIP,
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 argument and
evidence on this issue and hold a supplemental hearing if appropriate. Id., ¶ 17.
¶25 The administrative judge shall then issue a new initial decision consistent
with this Remand Order and Santos. See id. If the agency makes the additional
showing required under Santos on remand that the appellant’s performance in at
least one critical element was at an unacceptable level prior to her placement on
the PIP, the administrative judge shall make additional findings on the remaining
elements of the agency’s case, and may incorporate her prior findings on the
appellant’s affirmative defenses in the remand initial decision , as supplemented to
address any new arguments raised by the appellant on review . See id. 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, she should address such
argument or evidence in the remand initial decision. See Spithaler v. Office of
Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial
decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
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ORDER
¶26 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.