Bill Bailey v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BILL BAILEY, DOCKET NUMBER
Appellant, DA-0432-16-0360-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 21, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant.
Aaron T. Noble, Corpus Christi, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting him for unacceptable performance
pursuant to 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regional office for further adjudication consistent with the U.S. Court of Appeals
for the Federal Circuit’s decision in Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant, a Sheet Metal Mechanic (Aircraft) at the agency’s Corpus
Christi Army Depot, was demoted based on unsatisfactory performance effective
April 17, 2016. Initial Appeal File (IAF), Tab 2 at 14-16, Tab 9 at 45. He was
reduced in pay and grade from WG-3806-10 to WG-3806-08 following his
completing a performance improvement plan (PIP) that lasted approximately
90 days. IAF, Tab 2 at 8-16, Tab 9 at 45. Prior to his demotion, the appellant
had been in grade as a WG-3806-10 for over 9 years. IAF, Tab 16 at 4. The
appellant is rated on his performance in four critical elements. IAF, Tab 9
at 72-73. The PIP was based on the appellant’s unsatisfactory performance for
Critical Elements 1 (Technical Competence) and 4 (Responsibility/Dependability)
during the March 1, 2015, through February 29, 2016 rating period. Id. at 70-75.
The agency found his performance to be deficient for subelements 1(a) and 4(a),
which involved meeting or exceeding weekly and monthly work schedules and
accomplishing assignments within established time standards. Id. The agency
did not allege any issues with quality or other aspects of the appellant’s work.
Prior to being placed on the PIP, the appellant had been repeatedly counseled to
improve the speed at which he completed his work. Id. at 70-71; IAF, Tab 16
at 4.
¶3 The PIP notice documented in detail the appellant’s observed performance
deficiencies. IAF, Tab 9 at 67-68. The PIP notice further informed the appellant
that his supervisor would assess his performance pursuant to the performance
standards for the next 60 days. Id. at 68. The PIP notice also stated that
management would conduct weekly meetings with the appellant to review work
assignments and to discuss recommended improvements. Id. at 75-78. The
record shows that the appellant met with his supervisor approximately once a
3
week during the PIP period. Id. at 76-78; IAF, Tab 16 at 4-5. The PIP was
originally implemented from August 10 to October 9, 2015. IAF, Tab 9 at 67-68.
Later, the agency extended the PIP from November 19 to December 18, 2015.
IAF, Tab 16 at 5. At the end of the second PIP period, the agency determined
that the appellant’s performance was still unacceptable in the two critical
elements because he failed to complete his assigned tasks in a timely and
cost-effective manner. IAF, Tab 9 at 60-65. The agency demoted the appellant
effective April 17, 2016. Id. at 45-49.
¶4 The appellant timely appealed his demotion to the Board . IAF, Tab 1. The
appellant admitted that he did not meet the timeliness requirements for
subelements 1(a) and 4(a) during the PIP period. IAF, Tab 25 at 5-6. However,
he asserted that he was not provided a reasonable opportunity to improve under
the PIP and that the agency’s system used to track his performance on timeliness
was “not designed to be used in this manner” and could contain errors. Id. at 6-7.
¶5 The administrative judge decided the appeal on the pleadings after the
appellant withdrew his request for a hearing. IAF, Tabs 20-21, Tab 29, Initial
Decision (ID) at 1. In an initial decision, the administrative judge found that the
agency established that its performance standards were objective, reasonable, and
communicated to the appellant in advance; that the appellant was warned that his
performance was unacceptable; and that he was given a reasonable opportunity to
improve his performance. ID at 11-16. He further found that the record did not
support the appellant’s claims that the agency assigned him more difficult tasks
and that the agency gave him insufficient guidance during the PIP. ID at 14-16.
The administrative judge concluded that the agency showed that the appellant’s
performance was unacceptable during the PIP. ID at 16-17. He rejected the
appellant’s argument regarding the tracking system as speculative and concluded
that nothing on the face of the agency’s logs containing time liness data would
suggest they were unreliable. ID at 8-9.
4
¶6 The appellant also asserted an affirmative defense of whistleblower reprisal.
IAF, Tab 25 at 4-6. In early 2014, he filed complaints with the agency’s Office
of Inspector General (OIG) after reporting to his immediate supervisor that a
fellow employee was not reporting for work on a regular basis. IAF, Tab 1
at 6-7, 14, Tab 7 at 5-6, Tab 13 at 2. He additionally reported that other
employees in his shop failed to keep track of their tools and consumables, first to
his immediate supervisor and then to another manager. IAF, Tab 1 at 7-8, 14,
Tab 7 at 6, Tab 9 at 55-59, Tab 13 at 2. The appellant argued that the agency
had not taken similar administrative action against other employees who had
difficulty in completing their work in a timely manner, and that this difference in
treatment showed that the agency sought to unfairly punish him for his protected
activity under 5 U.S.C. § 2302(b)(8) and (b)(9)(C). IAF, Tab 1 at 16-17.
¶7 The administrative judge found that the appellant failed to establish his
affirmative defense of reprisal for whistleblowing and other protected activity.
ID at 17-21. The administrative judge found that the appellant proved by
preponderant evidence that he made protected disclosures to agency managers and
engaged in a protected activity by filing a complaint with the agency’s OIG. ID
at 18-19. He further found that the appellant established that his protected
activities were a contributing factor in the agency’s decision to demote him
because of unacceptable performance during a PIP. ID at 19; see 5 U.S.C.
§ 2302; Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 283, ¶ 15
(2006). He concluded, however, that the agency met its burden to show by clear
and convincing evidence that it would have taken the same action in the absence
of the disclosures and other protected activity by providing strong evidence
justifying the demotion. ID at 19-21. Accordingly, the administrative judge
affirmed the agency’s demotion action. ID at 21.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance-based action under chapter 43, the agency must
establish the following by substantial evidence: 2 (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 were valid under 5 U.S.C. § 4302(b)(1); 3 (4) the agency warned the
appellant of the inadequacies of his performance during the appraisal period and
gave him a reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant’s performance remained unacceptable in one or more of t he
critical elements for which he was provided an opportunity to demonstrate
acceptable performance. Lee v. Environmental Protection Agency, 115 M.S.P.R.
533, ¶ 5 (2010).
The appellant has not shown that the administrative judge made erroneous
factual findings.
¶9 The appellant argues that the administrative judge erred in finding that he
failed to identify any similarly situated employees who also had been subject to a
performance-based action. Petition for Review (PFR) File, Tab 1 at 10-11. He
asserts that his immediate supervisor supervised at least 13 additional persons
who exceeded their allotted hours for performing certain tasks, yet he was the
only person in his work unit who was placed on a PIP. Id. He asserts that the
administrative judge failed to consider as similarly situated several employees
2
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).
3
As a result of the enactment of the National Defense Authorization A ct for Fiscal Year
2018, Pub. L. No. 115-91, § 1097(d)(1), 131 Stat. 1283, 1619 (2017), the criteria that
were set forth in 5 U.S.C. § 4302(b)(1) at the time the initial decision was issued now
appear in 5 U.S.C. § 4302(c)(1).
6
who were temporarily assigned to his unit, even though those employees were
working on the same or similar projects with the same performance expectations
under the same supervisor. Id.¶10 We find that the appellant has mischaracterized the administrative judge’s
analysis. Although other employees in the same work unit exceeded their allotted
hours for the same or similar projects, no other employee did so to the extent that
the appellant did. IAF, Tab 17 at 27-29. In that respect, the administrative judge
concluded, the appellant had no true comparators. ID at 20. For example,
Employee 2, the colleague with the third-highest number of overrun hours
between January 1, 2015, and July 6, 2016, accrued slightly more than half the
number of the overrun hours that the appellant amassed. IAF, Tab 17 at 27-28.
The record also shows that the agency did not fail to act regarding the other
employees with significant numbers of overrun hours. Id. at 27-29. For example,
Employee 2 received a failing rating during the March 1, 2015, to February 29,
2016 rating period, when the appellant likewise received a failing rating. Id.
at 64-69; IAF, Tab 9 at 70-73. Although Employee 2 left work soon thereafter
when he incurred a compensable injury, the appellant’s immediate supervisor
stated that Employee 2 would be placed on a PIP once he returned to full duty.
IAF, Tab 17 at 27-28, 65. Employee 3, who also accrued a high number of
overrun hours, retired after he received a memorandum of warning regarding slow
work, and the remaining employees either were reassigned to different
supervisors or returned to their original work units, and those with higher
numbers of overrun hours received letters of warning. Id. at 27-29. Additionally,
most employees under the appellant’s immediate supervisor did not incur overrun
hours. There were approximately 30 employees in the appellant’s work unit, and
only 13 of those incurred overrun hours. IAF, Tab 24 at 11.
¶11 The appellant argues that the administrative judge erred in determining that
there was nothing more that the agency could have done to assist him in
improving his performance. PFR File, Tab 1 at 11. He asserts that the agency
7
could have provided training or assigned another employee to assist him in
learning to perform his assigned tasks more quickly; rather, the agency chose to
watch him fail. Id. The appellant has not identified any evidence in the record
that would support his conclusions. To the contrary, the administrative judge
described in detail the agency’s efforts to provide the appellant with a reasonable
opportunity to improve his performance. ID at 14-16. As the administrative
judge correctly pointed out, the assistant that the appellant requested was
unavailable because his expertise was needed elsewhere, and in any event, the
appellant encumbered a journeyman-level position and should have been able to
work independently or even lead a team of less-experienced personnel. ID at 15;
IAF, Tab 9 at 108-09, Tab 16 at 4, Tab 24 at 9-11. Moreover, the record shows
that the appellant received frequent assistance from his immediate supervisor,
including coaching on time management, and his work assignments du ring the
PIP were “no different from the type of work he had been performing before the
PIP,” neither measurably easier nor more difficult. IAF, Tab 9 at 76-78, Tab 24
at 9-10; see Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶¶ 7-18, 33
(2013) (finding that the agency presented sufficient evidence to show that the
appellant’s performance was unacceptable in certain critical elements,
notwithstanding her claims that she was not provided enough time to demonstrate
acceptable performance, her assignments during the PIP were out of the ordinary,
and the agency provided her with “minimal to nonexistent assistance”).
¶12 Next, the appellant argues that the administrative judge erred in finding that
he received less difficult assignments during the PIP, which should have made it
easier for him to perform his duties without incurring overruns. PFR File, Tab 1
at 12; ID at 15. The appellant’s immediate supervisor stated in his declaration
that he assigned the appellant work at the WG -8 level, rather than work at the
WG-10 level, during the PIP. PFR File, Tab 1 at 12; IAF, Tab 24 at 9-10. The
appellant asserts that work at the WG-8 level may be easier in theory, but those
assignments did not represent his typical workload and in some cases included
8
unfamiliar tasks, such as the assignment he received to upgrade the cockpit door
posts for an aircraft. PFR File, Tab 1 at 12; IAF, Tab 9 at 61-62.
¶13 Here, the appellant correctly notes that the administrative judge credited the
immediate supervisor’s declaration “wherein he stated that the appellant was
actually provided easier work than his job-level demanded during the PIP period.”
ID at 15. The declaration, however, is considerably more nuanced than the initial
decision suggests. In the declaration, the appellant’s immediate supervisor states
that he assigned the appellant WG-8, and not WG-10, level work because he
“wanted [the] Appellant to excel, and because due to difficulties getting him to do
WG-10 work before the PIP, he had not been performing that level of work for
some time.” IAF, Tab 24 at 9-10. The supervisor added that the PIP work
assigned to the appellant “was no different from the type of work he had been
performing before the PIP; it was not measurably easier or more difficult.” Id.
at 10 (emphasis added). He explained, “WG-10 work encompasses all WG-8
work and adds more advanced functions. Even a WG-10 mechanic newly
assigned to WG-8 work would not be facing unfamiliar tasks, because going from
WG-10 to WG-8 level work simply removes tasks.” Id. The appellant has not
identified any evidence in the record that would show that his supervisor’s
explanation in the declaration is inaccurate. We find that the declaration and the
record as a whole support the administrative judge’s decision to affirm the
demotion, and any error in the initial decision’s description of the declaration
is not of sufficient weight to change the outcome.
The agency gave the appellant a reasonable opportunity to demonstrate
acceptable performance.
¶14 The appellant argues that, in relying on the immediate supervisor’s
declaration, the administrative judge erroneously det ermined that he was given a
reasonable opportunity to improve his performance during the PIP. PFR File,
Tab 1 at 12-14. The appellant asserts that the administrative judge gave too much
emphasis to the following facts: a 90-day PIP is relatively long, the appellant
9
was afforded the opportunity to work on several different projects during the PIP,
and he was assigned work at the WG-8 level. Id. at 13; ID at 14-15. The
appellant asserts that the agency offered him sufficient time in which to improve
his performance, but inadequate assistance in doing so. PFR File, Tab 1 at 13.
He further asserts that the administrative judge gave too much weight to an
“unsupported statement” in his immediate supervisor’s declaration regarding the
nature of his duties during the PIP. Id. His duties at the WG-8 level were not
necessarily easier, he explains, because they included tasks he had not previously
or regularly performed. Id.¶15 As stated, to prevail in an appeal of a performance-based action, the agency
must inter alia establish by substantial evidence that it gave the appellant a
reasonable opportunity to demonstrate acceptable performance . Lee,
115 M.S.P.R. 533, ¶ 5. In determining whether an agency has afforded an
employee such an opportunity, relevant factors include the nature of the duties
and responsibilities of the employee’s position, the performance deficiencies
involved, and the amount of time which is sufficient to enable the employee with
an opportunity to demonstrate acceptable performance. Id., ¶ 32. The
administrative judge considered these factors. ID at 14-16. The Board has
determined that PIP periods of shorter duration were sufficient to afford
employees a reasonable opportunity to improve. Towne, 120 M.S.P.R. 239, ¶ 10
(finding that a 7-week PIP sufficed); Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 101 (1989) (finding that a 30-day PIP sufficed),
aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). In addition, as we have stated
above, the immediate supervisor’s declaration clearly explains the dutie s to which
the appellant was assigned during the PIP. Although the appellant contends that
the supervisor’s declaration is “unsupported,” he has failed to identify anything in
opposition to the declaration other than his bare assertion that his PIP
assignments differed appreciably from those he had been given prior to the PIP.
PFR File, Tab 1 at 13; cf. Betters v. Federal Emergency Management Agency,
10
57 M.S.P.R. 405, 408-10 (1993) (holding that the agency denied the appellant a
reasonable opportunity to improve when it changed his performance plan, first
during a detail and then during the PIP). We find the appellant has not provided a
sufficient basis to disturb to administrative judge’s finding that he was afforded a
reasonable opportunity to improve.
The agency showed by clear and convincing evidence that it would have demoted
the appellant in the absence of his whistleblowing and other protected activity.
¶16 Finally, the appellant argues that the administrative judge erred in
determining that the agency established by clear and convincing evidence that it
would have taken the same action regardless of his whistleblowing and other
protected activity. PFR File, Tab 1 at 14-17. In an appeal such as this one, the
agency’s action may not be upheld if the appellant shows that the decision was
based on a prohibited personnel practice. 5 U.S.C. § 7701(c)(2)(B). The
appellant alleged that the agency’s action was in retaliation for hi s having made
protected disclosures and for having engaged in other protected activity by
disclosing information to the agency’s OIG. IAF, Tab 1 at 6-8, 14, Tab 7 at 5-6,
Tab 9 at 55-59, Tab 13 at 2. To retaliate on such a basis is to commit a prohibited
personnel practice under 5 U.S.C. § 2302(b)(8) or (b)(9)(C).
¶17 Once the agency establishes that it properly took a performance -based
action, the appellant then must show by preponderant evidence t hat he engaged in
whistleblowing activity under 5 U.S.C. § 2302(b)(8) or in other protected activity
under 5 U.S.C. § 2302(b)(9) and his disclosure or other activity was a
contributing factor in the agency’s personnel action. 5 U.S.C. § 1221(e)(1);
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 13 (2015); Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013); 5 C.F.R.
§ 1201.56(b)(2)(i)(C). If an appellant meets this burden, the burden shifts to the
agency to establish by clear and convincing evidence that it would have taken the
same action in the absence of the protected disclosure or protected activity.
5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14; Shibuya, 119 M.S.P.R.
11537, ¶ 32. In determining whether the agency has met this burden, the Board will
consider all the relevant factors, including the following factors (“Carr factors”):
(1) The strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who did not engage in whistleblowing or other
protected activity, but who are otherwise similarly situated. Soto v. Department
of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. SociaSecurity
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 4 The Board does not view
these factors as discrete elements, each of which the agency must prove by clear
and convincing evidence, but rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. Phillips v.
Department of Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). The Board
considers all the evidence, including evidence that detracts from the conclusion
that the agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶18 The appellant argues that the administrative judge erred in his analysis of
the second and third Carr factors, which examine the agency’s motive to retaliate
and its treatment of similarly situated persons who did not engage in
whistleblowing or other protected activity. PFR File, Tab 1 at 16. Regarding the
second Carr factor, the administrative judge found that the appellant had not
offered any evidence of retaliatory motive. ID at 20. The appellant argues that
the administrative judge ignored his history of complaints and disclosures
4
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may filed
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
12
alleging that his immediate supervisor failed to ensure that employees properly
managed tools and expendables. PFR File, Tab 1 at 16. These complaints and
disclosures, the appellant argues, reflected poorly on his immediate supervisor
and gave him motive to retaliate. Id.¶19 The appellant’s argument relies on speculation. Indeed, the appellant has
identified no evidence in the record that would counter his imm ediate
supervisor’s declaration, which dispelled both a personal and professional motive
to retaliate. In the declaration, the supervisor flatly denied any retaliatory motive
based on the appellant’s disclosures “because neither of those disclosures
reflected badly on me or caused any issues.” IAF, Tab 24 at 12. The supervisor
stated that, when the appellant voiced his concerns about the matters disclosed, he
“did not mind his taking them up the chain of command or to the Inspector
General, because these were his rights.” Id. Moreover, the supervisor explained
that he lacked the authority to act on the appellant’s concerns about the
management of tools and expendables “since they were based on a misreading of
applicable rules” and that he already had acted on issues related to one
employee’s absenteeism by the time the appellant reported it. Id. He also
explained that he was never disciplined or counseled as a result of the appellant’s
contact with OIG and that he was “unaware of any employees who were.” Id. 5
¶20 Regarding the third Carr factor, the appellant asserts that the administrative
judge erred in determining that similar administrative actions had been taken
against other poorly performing employees. PFR File, Tab 1 at 16-17. The
administrative judge cited other administrative actions that had been taken against
poor performers assigned to the appellant’s work unit, which included a PIP
5
We have found that those responsible for the agency’s performance overall may well
be motivated to retaliate even if they are not directly implicated by the disclosures, as
the criticism reflects on them in their capacities as managers and employees. Wilson v.
Department of Veterans Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of the Army,
2022 MSPB 4, ¶¶ 28-29. However, there is no evidence in the record to support
this theory.
13
pending one employee’s return to duty and letters of warning issued for other
employees with significant overrun hours. ID at 20-21. The administrative judge
concluded that the agency proved that it had acted when other employees
performed at an unacceptable level. Id. The appellant argues that the
administrative judge’s conclusion is in error because the demotion action affected
him financially, unlike the formal warnings issued to other employees. PFR File,
Tab 1 at 16-17. The appellant has not, however, identified any evidence that
would place him on the same footing as those other employees. The record shows
that the appellant’s overrun hours were nearly double those of any other employee
who accrued overrun hours. The appellant accrued 590.6 overrun hours. IAF,
Tab 17 at 27. The nearest comparator, a detailee whose permanent supervisor
received a memorandum for the record regarding the overruns, accrued 309.7
overrun hours. Id. Employee 2, referenced supra, accrued 302.2 overrun hours.
Id. at 27-28. Employee 3 accrued 267.9 hours. Id. at 28. The appellant’s
supervisor placed memoranda for the record in the files of the other employees
who had amassed 200 or more overrun hours, and he spoke with the supervisors
of employees who had accrued smaller overruns. Id. The record shows that the
administrative judge weighed the Carr factors in the aggregate and found, based
on all the record evidence, that it clearly and convincingly supports the
conclusion that the agency would have demoted the appellant in the absence of
any whistleblowing disclosure or other protected activity.
Remand is required in light of Santos.
¶21 Although the administrative judge correctly cited the Board’s precedent
setting forth the relevant legal standard for chapter 43 actions at the time he
issued his initial decision, subsequent to the initial decision, the Federal Circuit
held for the first time that, to support such an action, an agency “must justify
institution” of a PIP by showing that the employee’s performance was
unacceptable prior to the same. Santos, 990 F.3d at 1360-61. Therefore, to
defend an action under chapter 43, an agency must now also prove by substantial
14
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, ¶ 14. The Federal Circuit’s decision in Santos
applies to all pending cases, including this one, regardless of when the events
took place. Id., ¶ 16. Although the agency here introduced evidence indicating
that the appellant was counseled for his performance issues prior to his placement
on the PIP, e.g., IAF, Tab 9 at 71, the parties nonetheless were not afforded an
opportunity before the administrative judge to address the modified legal standard
set forth in Santos. We therefore remand this case for further adjudication of the
appellant’s demotion. 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).
¶22 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence tha t the appellant’s
performance prior to the PIP was unacceptable. 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 his prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s prior
performance affects the administrative judge’s analysis of the appellant’s
affirmative defense of whistleblower reprisal, he should address such argument or
evidence in his 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).
15
ORDER
¶23 For the reasons discussed above, we grant the appellant’s petition for
review and remand this case to the regional office for further adjudication
consistent with Santos.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.