Melissa Hereford v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA M. HEREFORD, DOCKET NUMBER
Appellant, AT-0432-19-0677-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 2, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Melissa M. Hereford , Marietta, Georgia, pro se.
David R. Daniels , Esquire, and Kelly Wilkinson , Alexandria, Virginia, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal under 5 U.S.C. chapter 43. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Atlanta Regional Office for further
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
adjudication consistent with Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
The appellant served as a GS-13 Human Resources Specialist whose major
duties involved investigating and writing reports regarding equal employment
opportunity (EEO) complaints filed by agency employees. Initial Appeal File
(IAF), Tab 5 at 12, Tab 17 at 8. In this position, her performance plan was
comprised of the following three critical elements: (1) Technical Competency,
(2) Contribution to Mission, and (3) Customer Care/Teamwork. IAF, Tab 5 at 23-
26. The appellant’s performance in each critical element was rated on a three-
tiered scale with possible ratings of outstanding, fully successful, or
unacceptable. Id.The appellant’s first-level supervisor placed her on a 120-day Performance
Improvement Plan (PIP) beginning January 30, 2018, based on her determination
that the appellant had failed to maintain a fully successful level of performance
with respect to Contribution to Mission (Objective 2) and Customer
Care/Teamwork (Objective 3). Id. at 16-18; IAF, Tab 17 at 8. Following the
conclusion of the 120-day PIP period, the appellant’s supervisor, via
memorandum dated June 11, 2018, advised the appellant that she had raised her
performance back to the fully successful level of performance for both critical
elements. IAF, Tab 5 at 19-20. The memorandum informed the appellant,
however, that if she did not maintain at least a fully successful level of
performance in either of those elements during the remainder of the 1-year period
following the January 30, 2018 beginning date of her PIP, i.e., January 30, 2019,
she may be reassigned, demoted, or removed without further opportunity to
demonstrate an acceptable level of performance. Id.On December 11, 2018, the appellant’s supervisor proposed the appellant’s
removal for unacceptable performance. IAF, Tab 1 at 8-11. She found that the
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appellant’s performance was once again at the unacceptable level in both
Objectives 2 and 3. Id.; IAF, Tab 17 at 10. After considering the appellant’s oral
and written replies to the proposal, the appellant’s second-level supervisor issued
a decision imposing the removal, effective February 8, 2019. IAF, Tab 1
at 12-15, Tab 5 at 9-10.
The appellant filed a formal EEO complaint concerning her removal,
arguing that the agency discriminated against her based on disability, race, and
age. IAF, Tab 5 at 46-58. The agency issued a final agency decision on July 15,
2019, finding no discrimination, id., and the appellant timely filed this appeal,
IAF, Tab 1. After holding the requested hearing, the administrative judge issued
an initial decision finding that the agency carried its burden of proof and
sustaining the appellant’s 5 U.S.C. chapter 43 removal. IAF, Tab 35, Initial
Decision (ID). He found that the appellant did not prove her affirmative defenses
of race, age, or disability discrimination. ID at 10-31.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the appellant
argues that the administrative judge did not address discrepancies in the
testimonies of agency witnesses concerning her reasonable accommodation
request, abused his discretion in denying her motion to compel discovery, and
made harsh statements during the prehearing conference that caused the agency to
revoke a settlement offer. PFR File, Tab 1 at 4-5. She also appears to argue that
the agency initiated settlement discussions in an untimely manner based on the
Acknowledgment Order. Id. at 5.
ANALYSIS
The administrative judge correctly concluded that, under the law in effect at the
time, the agency satisfied its burden to prove that the appellant’s performance
was unacceptable.
At the time the initial decision was issued, the Board’s case law stated the
following. In a performance-based action under 5 U.S.C. chapter 43, an agency
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must show 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 her 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 her performance
during the appraisal period and gave her a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element. White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).
Ordinarily, the Board will presume that OPM has approved the agency’s
performance appraisal system; however, if an appellant has alleged that there is
reason to believe that OPM did not approve the agency’s performance appraisal
system or significant changes to a previously approved system, the Board may
require the agency to submit evidence of such approval. Lee v. Environmental
Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). Further, even if the employee
successfully completes the appraisal period, she may still be removed for
unacceptable performance under chapter 43 if (1) the instances of unacceptable
performance are in the same critical elements involved in the appraisal period,
and (2) the agency’s reliance for its action is limited to those instances of
performance that occur within 1 year of the advance notice of the appraisal
period. Muff v. Department of Commerce, 117 M.S.P.R. 291, ¶ 5 (2012).
In this case, the administrative judge found that the appellant did not raise
the issue of OPM’s approval of the agency’s performance appraisal system, and
the agency established by substantial evidence elements 2 through 4 of the White
standard. ID at 5-10; see 120 M.S.P.R. 405, ¶ 5. He further found that, although
the appellant successfully completed the appraisal period, the agency satisfied the
standard in Muff by showing by substantial evidence that she failed to meet the
fully successful annual performance standard for critical element/Objective 3
during the 1-year period prior to the issuance of her notice of proposed removal,
which was within 1 year of the advance notice of the appraisal period. ID at 5-10
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(citing Muff, 117 M.S.P.R. 291, ¶¶ 5, 10). We affirm these findings, which are
supported by the record. 2 Moreover, the appellant does not challenge these
findings on petition for review. See 5 C.F.R. § 1201.115 (“The Board normally
will consider only issues raised in a timely filed petition or cross petition for
review.”).
Remand is necessary to afford the parties an opportunity to provide evidence and
argument concerning whether the appellant’s placement on the PIP was proper.
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
above, the agency must also justify the institution of a PIP by proving by
substantial evidence that the employee’s performance was unacceptable prior to
that time. 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. Therefore, we must 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 should accept argument and evidence on this issue and hold
2
We clarify that Muff does not announce an absolute rule requiring an agency to rely on
a 1-year period of performance to remove an employee; rather, it explains that the
Board determines what constitutes substantial evidence of genuinely unacceptable
performance in the context of an employee’s annual performance plan on a case-by-case
basis. See Thomas v. Department of Justice, 117 M.S.P.R. 291, ¶ 10 n.4 (2014)
(discussing Muff, 117 M.S.P.R. 291, ¶ 8). Here, although the agency’s notice of
proposed removal, dated December 11, 2018, informed the appellant that its action was
based on the appellant’s performance during the period since May 30, 2018, IAF, Tab 1
at 8-9, the administrative judge determined that the appellant’s overall performance
during the 1-year period preceding the proposed removal was the appropriate
evidentiary period. ID at 5-7. We find no material error in the administrative judge’s
conclusion that the agency proved by substantial evidence that the appellant’s annual
performance was unacceptable. Id. Therefore, we need not determine whether the
6-month period relied upon in the proposal notice would have constituted substantial
evidence of genuinely unacceptable performance under the circumstances of this case.
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a supplemental hearing, if appropriate. Id., ¶ 17. The administrative judge
should then issue a new initial decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate in the remand initial decision his prior
findings on the other elements of the agency’s case. See id.On remand, the administrative judge should make new findings on the appellant’s
affirmative defenses.
The appellant raised affirmative defenses of disability, race, and age
discrimination, which the administrative judge found unproven. 3 ID at 10-31. On
review, the appellant appears to challenge the administrative judge’s credibility
determinations, and particularly those determinations that underlie his finding
that she did not establish her claim of disability discrimination based on a failure
to accommodate. Id. at 4; see ID at 21-31. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at the hearing;
the Board may overturn such determinations only when it has “sufficiently sound”
3
In her initial appeal and prehearing submission, the appellant also appeared to raise
the following harmful procedural error claim: the case processing times set forth in
critical element 3 of her performance plan violated 5 C.F.R. § 610.111 because it
expected that investigators work 75 to 90 consecutive days. IAF, Tab 1 at 5, Tab 19
at 9. The initial decision, however, does not address a claim of harmful procedural
error. In determining whether an appellant effectively abandoned an affirmative
defense or, conversely, whether there is a basis to remand the appeal for additional
proceedings regarding an affirmative defense, the Board will apply the nonexhaustive
list of factors set forth in Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 9-28.
Here, following the parties’ prehearing submissions, the administrative judge conducted
a prehearing conference and issued an order summarizing that conference in which he
identified the issues presented on appeal. IAF, Tab 21. The issues he listed did not
include this affirmative defense, and the order stated that no further defenses will be
accepted absent a showing of good cause. Id. Furthermore, the parties were provided
an opportunity to object to the prehearing conference order at the start of the hearing,
but no objections were made. IAF, Tab 21 at 18, Tab 34-1, Hearing Recording.
Finally, the appellant did not raise this affirmative defense in her petition for review,
whereas, despite her pro se status, she raised several other cognizable arguments.
PFR File, Tab 1. Based on all the above, we find that there is no basis to remand the
appeal for additional proceedings regarding this affirmative defense. See Thurman,
2022 MSPB 21, ¶¶ 9-28.
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reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.
Cir. 2002). Because the appellant has not identified such reasons here, we
decline to overturn the administrative judge’s credibility findings. 4
Nonetheless, on remand, the administrative judge must further adjudicate
the appellant’s claims of disability, race, and age discrimination. The Board must
consider an appellant’s pre-PIP performance in the context of an affirmative
defense when, as here, the validity of the agency’s proffered reason for taking the
performance-based action is a factor in analyzing that claim. Lin v. Department
of the Air Force, 2023 MSPB 2, ¶ 25 (citing Santos, 990 F.3d at 1363-64);
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 31 n.8; see IAF,
Tab 19 at 7-8. Further, in the period since the administrative judge issued his
initial decision, we clarified the evidentiary standards and burdens of proof for
the appellant’s affirmative defenses in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 27-29,
30-33, 40-42, and Wilson v. Small Business Administration, 2024 MSPB 3,
¶¶ 11-19. In the proceedings on remand, the administrative judge should advise
the parties of the standards set forth in Pridgen and Wilson, provide them with an
opportunity to present argument and evidence, and hold a supplemental hearing,
if appropriate, on the appellant’s affirmative defenses to permit the parties to
address those standards, as well as any claims regarding the appellant’s pre-PIP
performance. He should then apply the standards set forth in Pridgen and Wilson
in the remand initial decision, but he may incorporate his previous findings of
fact to the extent appropriate.
4
To the extent that the appellant is arguing that the administrative judge failed to
consider purported discrepancies in the agency witnesses’ testimonies and affidavits, we
are not persuaded. PFR File, Tab 1 at 4; see ID at 21-31. The initial decision contains
a thorough discussion of the relevant evidence, ID at 21-31, and any failure on the part
of the administrative judge to mention all of the evidence does not mean that he did not
consider it in reaching his decision. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365,
¶ 15 (2016).
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The appellant’s remaining arguments do not warrant Board review.
Discovery
The appellant argues that the administrative judge abused his discretion in
denying her motion to compel the discovery of comparator evidence that would
support her claim of disparate treatment discrimination. PFR File, Tab 1 at 4-5;
see IAF, Tabs 9, 10, 14. The administrative judge’s order reflects that he denied
the appellant’s motion to compel because the appellant subsequently reported that
she had located the agency’s discovery responses and, moreover, her motion did
not comport with the requirements of 5 C.F.R. § 1201.73(c)(1). IAF, Tab 14
at 1-2; see IAF, Tab 10 at 4. We find that the administrative judge did not abuse
his discretion in denying the appellant’s motion to compel and therefore find no
reversible error. See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,
¶ 15 (2013) (holding that an administrative judge has broad discretion in ruling
on discovery matters and, absent an abuse of discretion, the Board will not find
reversible error in such rulings); 5 C.F.R. §§ 1201.73(c)(1)(iii) (requiring a party
moving to compel to file a statement that the moving party has discussed or
attempted to discuss the anticipated motion with the nonmoving party or nonparty
and made a good faith effort to resolve the discovery dispute and narrow the areas
of disagreement), 1201.74(a) (providing that an administrative judge may deny a
motion to compel discovery if a party fails to comply with the requirements of
section 1201.73(c)(1)).
However, we note that the evidence allegedly sought by the appellant
through her discovery requests is relevant to an issue that the administrative
judge must further adjudicate on remand. PFR File, Tab 1 at 5. On remand, the
administrative judge must develop record evidence as necessary and appropriate,
while considering administrative efficiency and fairness to the parties. See
Pridgen, 2022 MSPB 31, ¶ 31 n.8. Accordingly, we leave the scope of any
further discovery to the sound discretion of the administrative judge on remand.
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Inadequacy of Settlement Discussions
The appellant asserts, for the first time on review, that the agency did not
contact her to discuss the possibility of settlement within the timeframe ordered
by the administrative judge in his Acknowledgment Order. PFR File, Tab 1 at 5;
see IAF, Tab 2 at 2. The appellant did not raise this as an issue at any point
during the proceedings below. In any event, we find that any failure on the part
of the agency concerning settlement discussions did not prejudice her substantive
rights and therefore provides no basis for reversal of the initial decision. See
Jones v. Department of the Interior, 70 M.S.P.R. 182, 186 (1996).
Administrative Judge Bias
The appellant asserts that the administrative judge made a harsh assessment
of her case during the prehearing conference that caused the agency to withdraw
its previous settlement offer. PFR File, Tab 1 at 5. Specifically, the
administrative judge allegedly expressed that someone in the appellant’s position,
i.e., an EEO Investigator, should have known how to obtain the reasonable
accommodation that she needed. Id. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). We find that the
appellant’s assertion neither overcomes this presumption nor demonstrates any
favoritism or antagonism on the part of the administrative judge.
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ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.