Wanny Ma v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WANNY MA, DOCKET NUMBER
Appellant, SF-0432-20-0471-I-1
v.
DEPARTMENT OF DEFENSE, DATE: October 15, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Wanny Ma , Monterey Park, California, pro se.
Temple Louise Wilson , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal based on unacceptable performance pursuant to
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
regional office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was an Auditor whom the agency removed under the
provisions of 5 U.S.C. chapter 43, effective April 21, 2020. Initial Appeal File
(IAF), Tab 5 at 17-22. The appellant filed a Board appeal, and the administrative
judge issued an initial decision sustaining the removal. IAF, Tab 16, Initial
Decision (ID). The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response to the appellant’s petition for
review, and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 3-4.
¶3 Having carefully considered the appellant’s petition for review, we find that
she has identified no basis to disturb the initial decision. Nevertheless, during the
pendency of the petition for review, the U.S. Court of Appeals for the Federal
Circuit issued Santos v. National Aeronautics and Space Administration , 990 F.3d
1355 (Fed. Cir. 2021), in which it clarified the agency’s burden of proof in a
chapter 43 appeal. Specifically, the court held that, in addition to the elements of
proof that the administrative judge identified in his initial decision, ID at 2, an
agency “must justify institution of a PIP” by showing that the employee’s
performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61.
Therefore, to defend an action under chapter 43, an agency must now also prove
by substantial evidence that the appellant’s performance during the appraisal
period prior to the PIP was unacceptable in one or more critical elements. See
Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 15.
¶4 Pursuant to Santos, the Board now identifies six elements that the agency in
a chapter 43 appeal must prove by substantial evidence: (1) the Office of
Personnel Management approved its performance appraisal system and any
significant changes thereto; (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 appellant’s
performance during the appraisal period was unacceptable in one or more critical
3
elements; (5) the agency warned the appellant of the inadequacies in his
performance during the appraisal period and gave him an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
¶5 The administrative judge in this case correctly applied Board precedent as it
existed at the time he issued his initial decision. However, the Federal Circuit’s
decision in Santos applies to all pending cases, including this one, regardless of
when the events took place. Lee, 2022 MSPB 11, ¶ 16. The parties here did not
have an opportunity before the administrative judge to address the modified legal
standard in light of Santos. We, therefore, remand this case for further
adjudication of the appellant’s removal under the standard set forth in Santos.
See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings
under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos).
¶6 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. 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 his prior findings on other elements of the agency’s case in the
remand initial decision.
4
ORDER
¶7 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.