Linda Stump v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA S. STUMP, DOCKET NUMBER
Appellant, PH-0432-20-0223-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 19, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Randolph Elliott , Camp Hill, Pennsylvania, for the appellant.
Owen J. Hoover , New Cumberland, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal for unacceptable performance 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 the appeal to the Northeast Regional Office for
further adjudication consistent with Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was a WG-05 Materials Handler for the agency. Initial
Appeal File (IAF), Tab 6 at 13. Her job entailed working in a warehouse to stock
items and fulfill ticketed orders. Id. at 105. The appellant’s performance plan
consisted of three critical elements – Process Compliance, Work Output Quantity,
and Work Output Quality. IAF, Tab 6 at 30-33. Her performance in each
element, as well as her overall performance, was rated on a three-tiered scale,
ranging from Outstanding to Fully Successful to Unacceptable. Id. A rating of
Unacceptable in one element would automatically result in a summary rating of
Unacceptable. Id. at 33.
The focus of the instant appeal is the Work Output Quantity element, which
is essentially an employee’s rate of production. The agency determines this rate
by dividing the number of warehouse production actions (picking and stowing)
that an employee has performed by the number of production hours that it took
her to perform them. This actual production rate is then expressed as a
percentage of a standard rate. This standard rate is the number of warehouse
production actions that an employee should be able to perform every hour on
average. In this case, the standard rate was 22 actions per hour. Hearing
Recording, Track 2 at 21:45 (testimony of the appellant’s supervisor). To achieve
a rating of Fully Successful, the appellant would need to achieve a production
rate of at least 90% of the standard rate. Anything less than that would be
deemed Unacceptable. Id. at 137.
On March 29, 2019, the appellant’s supervisor issued her a 90-day
performance improvement plan (PIP) to address her performance in the critical
element of Work Output Quantity. Id. at 127-29. The notice contained a chart of
the appellant’s output quantity over the previous 7 months and explained that her
monthly production level was unacceptable in 5 of those 7 months. Id. at 128.
The notice further informed the appellant that her supervisor would meet with her
on a weekly basis during the PIP period to discuss her performance and assist her
3
in organizing and prioritizing her work. Id. The appellant was advised that, if
she failed to demonstrate acceptable performance during the PIP period
(essentially, April, May, and June 2021) and maintain acceptable performance for
1 year, the agency could take action to reassign, demote, or remove her. Id. The
appellant’s production during these 3 months was closely monitored, and she had
weekly meetings about it with her supervisor, who kept her apprised of her
production rate and advised her on how to improve it. The supervisor also asked
the appellant every week whether there was anything more he could do to help,
but the appellant always responded that there was not. Id. at 36-126.
After the close of the PIP period, on August 6, 2019, the appellant met with
her supervisor, who informed her that her production rate during the PIP was 70%
and that she had therefore failed to improve her performance to the Fully
Successful level. Id. at 35. On September 24, 2019, the agency proposed the
appellant’s removal under 5 U.S.C. chapter 43, for unacceptable performance in
the critical element of Work Output Quantity. Id. at 21-24. After the appellant
responded, the agency issued a decision removing her effective February 19,
2020. Id. at 13-20.
The appellant filed a Board appeal, challenging the merits of the agency’s
action and raising affirmative defenses of disability discrimination and harmful
procedural error. IAF, Tab 1 at 4, 6, Tab 11. After a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal. IAF, Tab 14,
Initial Decision (ID). He found that the agency met its burden of proof on each of
the elements of its case and that the appellant failed to prove her affirmative
defenses. Id. at 3-15.
The appellant has filed a petition for review, renewing her disability
discrimination claim and arguing that the administrative judge abused his
4
discretion in one of his witness rulings. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. 1 PFR File, Tab 3
ANALYSIS
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
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. 2
White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). The
administrative judge addressed each of these elements in turn and found that the
agency carried its burden with respect to all of them. ID at 3-8. We affirm the
administrative judge’s findings in this regard. These findings are supported by
the record, and the appellant does not challenge them on petition for review.
1
After the appellant filed her petition for review, the Clerk of the Board sent a standard
petition for review acknowledgment letter to the appellant, the appellant’s
representative, and the agency’s representative. PFR File, Tab 2. The appellant’s copy
was sent by U.S. mail to her address of record. Id. at 5; IAF, Tab 1 at 1. However, her
copy of the letter was returned by the U.S. Postal Service as undeliverable, with the
explanation “NO SUCH STREET UNABLE TO FORWARD.” Nevertheless, the
appellant’s representative received an electronic copy of the acknowledgment letter, and
we find no indication that the appellant’s substantive rights were prejudiced by her
failure to receive a copy of the letter personally. See Crespo v. U.S. Postal Service,
53 M.S.P.R. 125, 128-29 (1992) aff’d, 996 F.2d 319 (Fed. Cir. 1993) (Table).
2
In his initial decision, the administrative judge set forth the standard as found in
Kadlec v. Department of the Army, 49 M.S.P.R. 534, 539 (1991). ID at 2-3. This
formulation omits the fifth element, i.e., that the agency must show by substantial
evidence that the employee’s performance remained unacceptable. Nevertheless, the
administrative judge explicitly addressed this element in his initial decision. ID at 8.
5
See 5 C.F.R. § 1201.115 (“The Board normally consider only issues raised in a
timely-filed petition or cross-petition for review.”).
Nor does the appellant contest the administrative judge’s finding that she
failed to prove her affirmative defense of harmful procedural error. ID at 8 -10.
The appellant argued that the agency violated the applicable Master Labor
Agreement by not addressing her performance deficiencies “as early as possible.”
ID at 9; IAF, Tab 6 at 3. However, for the reasons explained in the initial
decision, we agree with the administrative judge that the appellant failed to
identify any procedural error that the agency made in this regard, much less a
procedural error that may have affected the outcome of its decision. ID at 8-10;
see LeBlanc v. Department of Transportation , 60 M.S.P.R. 405, 417 (1994), aff’d,
53 F.3d 346 (Fed. Cir. 1995) (Table).
The appellant does, however, contest the administrative judge’s findings on
her status-based disability discrimination claim. PFR File, Tab 1 at 4. To prove
such a claim, an appellant must show that she is a qualified individual with a
disability and that her disability was at least a motivating factor in the agency’s
action. 3 Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28;
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 40. If the
appellant meets her burden, the Board will then inquire whether the agency has
shown by preponderant evidence that it still would have taken the contested
action in the absence of the discriminatory motive. If the Board finds that the
agency has made that showing, the appellant’s relief may be limited. Id., ¶ 42.
In this case, the administrative judge found that the appellant failed to
show that she had a “disability” within the meaning of 29 C.F.R. § 1630.2(g), and
even if she did, she failed to show that her disability was a motivating factor in
her removal. ID at 13-15. Specifically, the administrative judge found that the
appellant did not identify her allegedly disabling condition or provide evidence of
3
To receive the full measure of relief available under the statute, an appellant must
prove that her disability was a but-for cause of the agency’s action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 40.
6
that condition and its effect on any major life activity. ID at 13; see Smith v.
Department of the Interior, 112 M.S.P.R. 173, ¶ 21 (2009) (denying the
appellant’s status-based disability discrimination claim because she failed to
prove that she was disabled). He also found that, even assuming that the
appellant was a qualified individual with a disability, the responsible agency
officials were unaware of her alleged disability, and the appellant otherwise
presented no evidence to suggest that her alleged disability was a motivating
factor in her removal. ID at 13-15; see Forte v. Department of the Navy,
123 M.S.P.R. 124, ¶ 33 (2016) (denying the appellant’s status-based disability
discrimination claim because he failed to prove that his disability was a
motivating factor in his suspension).
On petition for review, the appellant states merely, “29 CFR 1607.11
Disparate Treatment. The Appellant believes that she clearly demonstrated that
the Agency discriminated on her.” Before the Board will undertake a complete
review of the record, the petitioning party must explain why the challenged
factual determination is incorrect, and identify the specific evidence in the record
that demonstrates the error. Weaver v. Department of the Navy, 2 M.S.P.R. 129,
133 (1980). We find that the appellant’s argument constitutes mere disagreement
with the administrative judge’s reasoned and explained findings, and therefore
does not provide any basis to grant the petition for review. See id. at 133-34.
The citation provided by the appellant is to a regulation that does not apply to the
facts of this case. Under its own terms, 29 C.F.R. § 1607.11 applies only to
selection procedures and concerns discrimination under Title VII, to the exclusion
of discrimination based on disability. See 29 C.F.R. § 1607.2(A).
The appellant also argues that the administrative judge should have allowed
her to call the proposing official as a witness. PFR File, Tab 1 at 3-4. Under
5 C.F.R. § 1201.41(b)(8), an administrative judge has broad authority to rule on
witnesses, and his rulings on such matters will not be overturned absent an abuse
of discretion. In this case, the appellant did not list the proposing official as a
7
witness in a prehearing submission. In fact, she did not file a prehearing
submission, and so the administrative judge ruled, prior to the hearing, that the
appellant herself would be permitted to testify but that she would not be permitted
to call any other witnesses. IAF, Tab 11 at 7-8. Therefore, when the appellant
attempted to call the proposing official as a witness, the administrative judge
denied her request. Hearing Recording, Track 6 at 13:30. Although the agency
identified the proposing official as a witness in its prehearing submissions, it
ultimately declined to call her. PFR File, Tab 1 at 3; IAF, Tab 10 at 6. The
Board has consistently found that an administrative judge does not abuse his
discretion by disallowing witnesses who were not included in a party’s witness
list. E.g. Stewart-Maxwell v. U.S. Postal Service, 56 M.S.P.R. 265, 271 (1993).
This is so even if that witness was included in the opposing party’s list and the
opposing party declined to call the witness. Dubiel v. U.S. Postal Service, 54
M.S.P.R. 428, 432 (1992). Moreover, the appellant has not explained what
testimony she hoped to elicit from the proposing official or how that testimony
might be material to the outcome of the appeal. See Butler v. Department of the
Air Force, 73 M.S.P.R. 313, 317 (1997); Karapinka v. Department of Energy,
6 M.S.P.R. 124, 127 (1981) (stating that an administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights). Therefore, we find the appellant’s argument of error
by the administrative judge unpersuasive.
Nonetheless, we must remand this appeal for another reason. 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, 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 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,
8
2022 MSPB 11, ¶ 16. Although the record in this appeal already contains
evidence suggesting that the appellant’s performance over the 7 months leading
up to the PIP was indeed unacceptable, IAF, Tab 6 at 128, 142-60, 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 Lee, 2022 MSPB
11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue, and shall hold a supplemental hearing if appropriate. Id.,
¶ 17.
The administrative judge shall 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 his prior findings on
the other elements of the agency’s case and the appellant’s 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, the administrative judge should address such
argument or evidence in the remand initial decision. See Spithaler v. Office of
Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial
decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
9
ORDER
For the reasons discussed above, we REMAND this case to the Northeast
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.