Rolando Alvarado v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROLANDO ALVARADO, DOCKET NUMBER
Appellant, SF-0432-19-0560-I-1
v.
DEPARTMENT OF DEFENSE, DATE: December 20, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Paul McBride , Van Nuys, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his demotion based on his unacceptable contribution under one critical
factor of his position. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Remand Order
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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and Santos v. National Aeronautics and Space Administration , 990 F.3d 1355(Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the elements of its chapter 43 contribution-based action under
the law as it existed at the time of the appeal.
In demoting the appellant, the agency relied on the appellant’s alleged
failure to complete six tasks falling under all three critical factors of his position.
Initial Appeal File (IAF), Tab 15 at 12-17, 39-44. However, the administrative
judge found that the agency had accepted the appellant’s work under five of the
tasks. Thus, the administrative judge sustained the demotion action based solely
on the appellant’s inadequate work under task A, which fell under critical factor
two, Communications and/or Teamwork. IAF, Tab 19, Initial Decision (ID)
at 9-10, 12. On review, the appellant argues, among other things, that he was not
afforded a reasonable opportunity to demonstrate acceptable contribution, he was
not afforded the promised assistance, and his work was acceptable. Petition for
Review File, Tab 1 at 6-10.
To prevail in an appeal of a Contribution-based Compensation and
Appraisal System (CCAS) action, an agency must prove different elements than
those in a traditional performance-based action under 5 U.S.C. chapter 43, but
such actions are still appealable to the Board under 5 U.S.C. chapter 43.
Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 7 (2015); see Civilian
Acquisition Workforce Personnel Demonstration Project; Department of Defense,
64 Fed. Reg. 1426-01, 1481 (Jan. 8, 1999). The administrative judge properly
found, under the law as it existed at the time, that to prevail in an appeal of a
CCAS contribution-based action, the agency must show by substantial evidence
that (1) it notified the appellant that he would be placed on a Contribution
Improvement Plan (CIP), (2) it informed him of what he must do during the CIP
to demonstrate acceptable contribution and warned him that failure to do so could
result in an employment action, (3) it gave him a reasonable opportunity to
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demonstrate acceptable contribution during the CIP, and (4) the appellant’s
contribution was unacceptable during the CIP. ID at 5 (citing Thompson,
122 M.S.P.R. 372, ¶ 7).
The appellant does not challenge the administrative judge’s finding that the
agency has proven elements 1 and 2 by substantial evidence. ID at 5-6. In this
case, the parties stipulated that the agency communicated to the appellant the
performance standards and critical elements of his position and that it warned him
of the inadequacies of his performance during the appraisal period. IAF, Tab 16
at 4. It was not inappropriate for the administrative judge to consider these
stipulations but, contrary to her conclusion, they fall short of fully satisfying the
agency’s burden on elements 1 and 2. ID at 5-6. The record shows, however,
that the agency notified the appellant that he would be placed on a CIP, informed
him of what he must do during the CIP to demonstrate acceptable contribution,
and warned him that failure to do so could result in an employment action. IAF,
Tab 8 at 12-15.
Regarding the reasonableness of the time period in which the appellant had
to demonstrate acceptable contribution, the record reflects that, while shorter time
frames may have initially been set, the appellant was ultimately afforded 60 days
to demonstrate acceptable contribution, and the administrative judge found the
time frame to be reasonable. ID at 6-7; IAF, Tab 5 at 37, Tab 8 at 14. The
administrative judge also found that the appellant’s supervisor provided him with
adequate assistance and that the agency established by substantial evidence that
the appellant’s contribution under critical factor two was inadequate. ID at 8-12.
In making her findings, the administrative judge relied on the hearing testimony
of the witnesses and the documentary evidence. We discern no reason to reweigh
the evidence or substitute our assessment of the evidence for that of the
administrative judge. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
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reasoned conclusions); see Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) (stating that the Board must give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing; the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so). We therefore find that the agency proved the elements of its
chapter 43 contribution-based action under the law as it existed at the time of the
appeal.
Remand is required under Santos .
Although the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand this appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that an
agency must also justify the institution of a performance improvement plan (PIP)
by proving that the employee’s performance was unacceptable prior to the PIP.
The Federal Circuit’s decision in Santos applies to all pending cases, including
this one, regardless of when the events took place. Lee v. Department of Veterans
Affairs, 2022 MSPB 11, ¶ 16. Although the appeal in Santos involved a
performance-based action under a traditional performance-based appraisal
system, we find that the Federal Circuit’s reasoning applies equally to the
contribution-based action taken under the CCAS at issue here. See Lin v.
Department of the Air Force, 2023 MSPB 2, ¶ 19 (applying Santos to a chapter 43
action arising out of a similar contribution -based system). The agency’s authority
to initiate a CIP under CCAS is predicated on “[i]nadequate contribution in any
one factor at any time during the appraisal period . . . . ” 64 Fed. Reg. at 1481.
Additionally, a CIP notice must explain how the employee’s contribution scores
are inadequate and what improvements are required and inform him that he may
face an employment action “unless the contribution increases to, and is sustained
at, a higher level . . . .” Id.; cf. Santos, 990 F.3d at 1360-61 (examining similar
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statutory language to conclude that that an agency must justify institution of a PIP
when an employee challenges a performance-based removal under chapter 43).
We therefore remand this case for further adjudication of the appellant’s
demotion under the standard set forth in Santos. See Lee, 2022 MSPB 11,
¶ 16 (remanding the appellant’s chapter 43 appeal because the parties did not
have an opportunity to address the modified standard set forth in Santos).
On remand, the administrative judge shall accept evidence and argument on
the requirement in Santos. The administrative judge shall hold a supplemental
hearing if appropriate. The administrative judge shall then issue a new initial
decision consistent with Santos. If the agency makes the additional showing
required under Santos on remand, the administrative judge may incorporate prior
findings on other elements of the agency’s case in the remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.