Elizabeth Barnes v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH PARKER BARNES, DOCKET NUMBER
Appellant, DC-0432-15-1013-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 14, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Elizabeth Parker Barnes, Vinton, Virginia, pro se.
Mark R. Higgins, Norfolk, Virginia, 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
sustained her removal based on 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 Washington
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Santos v. National
Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant encumbered the position of Architect, GS -12. Initial Appeal
File (IAF), Tab 16 at 85-90. For the period ending October 31, 2013, the agency
rated her performance as “needs improvement,” id. at 57. Thereafter, the agency
found her work on a particular project to be unsatisfactory, id. at 68, 70, and
advised her that her performance on certain of her objectives 2 needed
improvement and that she would be placed on a performance improvement plan
(PIP), id. at 70. At the end of January 2014, the appellant was on sick leave and
then on other types of leave until she returned to duty on May 29, 2014, under a
reasonable accommodation arrangement allowing her to telework 4 days a week,
later reduced to 3 days a week. IAF, Tab 15 at 69. For the period November 1,
2013 to August 15, 2014, but excluding the time she was on leave, the agency
rated the appellant’s performance as failing in a number of her objectives. IAF,
Tab 43 at 4-10.
¶3 On October 10, 2014, the appellant’s supervisor notified her that she was
not performing her duties at an acceptable level and that she was being placed on
a 60-day PIP to help her improve her performance. Id. at 24-33. The supervisor
set forth six objectives in which he indicated that the appellant’s performance
needed to improve; Technical Management, Responsibility/Accountability,
Working Relationships, Communication, Be Aware, and Working Within the
Project Management Best Practices as a Project Delivery Team Member . As to
each, the supervisor set forth the observed issues with the appellant’s
performance, and explained what she must do to improve. Id. The supervisor
stated that he would meet with the appellant weekly to discuss her responsibilities
2
These “objectives” correspond to critical elements, as set forth in 5 C.F.R.
§ 432.103(b).
3
under the listed objectives and to address deficiencies, that the meetings would be
documented, that he would review the appellant’s work, “TEE-UP”/mock up
drawings, work breakdown structures that would be used for listing task
assignments as necessary, and that he would attend as many project team and
individual meetings as possible to view her performance in various settings, id.
at 32. On December 10, 2014, the agency advised the appellant that, although she
had shown some improvement, she was still failing in the six objectives, and that
the PIP would be extended until January 22, 2015. IAF, Tab 15 at 9 -12.
¶4 On January 22, 2015, the appellant’s supervisor proposed her removal for
Failure during Performance Improvement Period; specifically, for failing in her
objectives, with the exception of the Be Aware objective. IAF, Tab 12 at 82-90.
After receiving the appellant’s written reply, id. at 64-71, the Deputy Division
Chief requested clarification from the appellant’s supervisor on certain issues,
after which the Deputy Division Chief provided to the appellant the information
he had received along with a new notice of proposed removal, including an
additional opportunity to reply, id. at 52-53. Thereafter, the Chief issued a letter
of decision notifying the appellant that she was removed from her position, id. at
39-43, 36.
¶5 The appellant challenged the action by filing a timely formal complaint of
discrimination in which she alleged that the agency’s action was due to
discrimination because of sex, age, and disability, as well as retaliation for prior
equal employment opportunity (EEO) activity. Id. at 21-34. When 120 days had
passed without a final decision by the agency, the appellant filed a Board appeal ,
IAF, Tab 1, in which she argued that the PIP and her performance standards were
invalid and renewed her affirmative defenses, id. at 6. She requested a hearing,
id. at 2. During the processing of the appeal, the appellant added a claim that the
agency’s action was also in retaliation for her protected whistleblowing activity.
IAF, Tab 52 at 2.
4
¶6 Thereafter, the administrative judge issued an initial decision. 3 IAF,
Tab 62, Initial Decision (ID). He first found that the appellant did not challenge
the Office of Personnel Management (OPM)’s approval of the agency’s
performance appraisal system and that therefore that matter was not at issue in the
appeal. 4 ID at 4 n.4. The administrative judge next examined the appellant’s
performance standards, IAF, Tab 16 at 58-62, finding that the agency proved by
substantial evidence that they were valid in that they were neither impermissibly
vague nor ambiguous, but rather reasonable and attainable, and that they were
clearly communicated to the appellant, 5 ID at 4-10. The administrative judge then
found that the agency proved by substantial evidence that the appellant was
provided a reasonable opportunity to demonstrate acceptable performance. ID
at 10-15. Specifically, he found, considering the nature of the duties and
responsibilities of the appellant’s position as an architect, that the 102 days she
had between October 10, 2014 and January 20, 2015, was a reasonable amount of
time in which to show sufficient improvement, that she worked under a detailed
PIP, and that she was afforded considerable written feedback on her work and
weekly meetings to provide assistance. ID at 15. The administrative judge then
considered the appellant’s performance during the PIP. ID at 15-17. Relying on
3
The administrative judge found that the appellant filed her appeal after the issuance of
a Final Agency Decision (FAD) on her EEO complaint. ID at 1 n. 1, 2. However, there
is no indication that the agency issued a FAD. Rather, the appellant timely filed her
appeal when the agency had not issued a FAD within 120 days. 5 C.F.R.
§ 1201.154(b)(2). Any such error by the administrative judge, however, did not
prejudice the appellant’s substantive rights. Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984).
4
The agency did, however, submit evidence that OPM approved its performance
appraisal system. IAF, Tab 12 at 7.
5
To the extent that the administrative judge considered in his analysis the validity of
the appellant’s performance standards under the Be Aware objective, he need not have
done so since the proposing official found that the appellant’s performance under t hat
objective during the PIP was acceptable. IAF, Tab 12 at 89. However, any such error
did not prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. at 282.
5
what he considered the credible and probative testimony of the appellant’s
supervisor, the administrative judge found that the appellant failed to complete
either of the two projects she was assigned during the PIP, and that she exhibited
rude and impolite behavior toward other members of the architectural section. ID
at 16. The administrative judge concluded that the agency established by
substantial evidence that the appellant’s performance in the five objectives was
unacceptable. ID at 17. The administrative judge then addressed the appellant’s
affirmative defenses. He found that she failed to establish her claims of disability
discrimination, ID at 19-22, age or sex discrimination, ID at 23-25, retaliation for
her protected EEO activity, ID at 25-29, and retaliation for protected
whistleblowing activity, ID at 29-31. Accordingly, the administrative judge
affirmed the agency’s action. ID at 1, 31-32.
¶7 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 4, the agency has filed a response, PFR File, Tab 5, and t he appellant
has filed a reply, PFR File, Tab 7.
ANALYSIS
¶8 In her petition for review, the appellant has chosen to address her concerns
with the initial decision by presenting “responses” to its individual paragraphs,
beginning with paragraph 1 of the Analysis and Findings section and continuing
through paragraph 110, which occurs partway through the administrative judge’s
analysis of the appellant’s claim of discrimination based on age and sex. PFR
File, Tab 1 at 7-31. Some of these “responses” are simply disagreements with
specific factual findings in the initial decision that have not been shown to be
material to the disposition of the appeal. We have not addressed these and other
such “responses” because they do not meet the Board’s criteria for granting a
petition for review. 5 C.F.R. § 1201.115. However, in order to facilitate our
analysis of the appellant’s petition for review, we have grouped some of her
“responses” to the extent she has raised valid objections to the initial decision.
6
¶9 As noted, consistent with the Federal Circuit’s decision in Santos, 990 F.3d
at 1360-63, we are remanding this appeal for further adjudication. In Santos, the
court held for the first time that, in addition to the elements of a chapter 43 case
set forth by the administrative judge, an agency must also show that the initiation
of a PIP was justified by the appellant’s unacceptable performance before the
PIP. Id. Prior to addressing the remand, we address the administrative judge’s
findings on the elements of a chapter 43 appeal as they exist ed at the time of the
initial decision, the findings regarding the appellant’s affirmative defenses, and
the appellant’s arguments on review.
The appellant failed to show that the administrative judge erred, under the law in
effect at the time, in finding that the agency satisfied its burden to prove that the
appellant’s performance was unacceptable.
¶10 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) 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 a ppellant’s
performance remained unacceptable in at least one critical element. White v
Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013). As set forth
below, we affirm the administrative judge’s findings as to each of these elements.
¶11 On review, the appellant challenges the administrative judge’s finding that
the agency proved that her performance standards were valid, arguing that, during
the PIP, she was required to perform the duties of “another position,” that of
Design Team Leader (DTL) in addition to her normal duties as a Lead Design
Architect (LDA). PFR File, Tab 4 at 8-11, 13-14, 16, 21. The appellant
acknowledges, however, that this is not an argument she raised below. PFR File,
7
Tab 7 at 6. In fact, she states that she was not aware, even at the hearing, that, in
her view, her performance standards required her to combine the duties and
responsibilities of the DTL and the LDA positions, and that it was not until she
read the initial decision that “it occurred to [her] that it would be prudent to
re-examine the actual performance criteria [her supervisor] had set out rather than
just rely on his characterization of it in court.” Id. The Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previou sly available
despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). Because the appellant has not made such a showing,
we have not considered this claim.
¶12 The Board will defer to managerial discretion in determining what agency
employees must do to perform acceptably in their positions when, as here, the
agency has shown that the performance standards, to the maximum extent
feasible, permit the accurate evaluation of job performance on the basis of
objective criteria related to the job in question and are reasonable, realistic,
attainable, and clearly stated in writing. Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 29 (2010). Agencies are entitled to use their managerial
discretion in establishing the performance standards by which an employee’s
performance is to be measured. Thompson v. Department of the Navy,
89 M.S.P.R. 188, ¶ 5 (2001).
¶13 In finding that the appellant’s performance standards were valid and
properly communicated to her, the administrative judge relied upon the testimony
of the appellant’s supervisor to the effect that all architects with the agency have
the same performance elements and standards, that the PIP notified her
specifically of what she had to do to bring her performance up to the required
level and gave specific instructions for behaviors that would allow for successful
performance, and that she appeared to understand the objectives when he
discussed them with her. Hearing Compact Disc (HCD) I (testimony of the
8
appellant’s supervisor); ID at 10. Our review of the performance standards
supports the appellant’s supervisor’s testimony regarding their reasonableness
and attainability. IAF, Tab 16 at 58-62. Beyond her mere disagreement with the
administrative judge’s findings, the appellant has not shown that the
administrative judge erred in finding that the agency proved by substantial
evidence that her performance standards were valid and fairly communicated to
her.
¶14 The appellant also challenges the administrative judge’s finding that the
agency proved by substantial evidence that it afforded her a reasonable
opportunity to improve her performance. PFR File, Tab 4 at 20-22. In
determining whether an agency has afforded an employee a reasonable
opportunity to demonstrate acceptable performance, 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
provide the employee with an opportunity to demonstrate acceptable performance.
Lee, 115 M.S.P.R. 533, ¶ 32.
¶15 The appellant argues that her supervisor “sabotaged her projects as a pretext
to give her a poor performance evaluation,” PFR File, Tab 4 at 20, and that she
had no opportunity to improve before the evaluation and/or PIP meeting, id. at 16.
However, the performance evaluation to which she refers predated the PIP by at
least 60 days, IAF, Tab 43 at 4-10, and it therefore had no bearing on the
reasonableness of the opportunity to improve that began on October 10, 2014. Id.
at 24-33. 6 The appellant also contends that, at PIP meetings, her supervisor
provided no guidance on how she should proceed. PFR File, Tab 4 at 20. Her
supervisor, however, recalled that the appellant reacted negatively to his
guidance. HCD I (testimony of the appellant’s supervisor). The appellant also
challenges the administrative judge’s findings as to the roof project she was
6
This argument may, however, be relevant to the issues before the administrative judge
on remand regarding the appellant’s pre-PIP performance.
9
assigned during the PIP, arguing that she disagreed with her supervisor regarding
what needed to be done, and that the disagreement caused friction between her
coworkers and her. PFR File, Tab 4 at 21-22.
¶16 Here, the appellant’s initial 60-day PIP was extended for an additional 6
weeks. IAF, Tab 15 at 9-12. During that lengthy time, the appellant’s supervisor
provided her considerable written feedback, IAF, Tab 14, and met with her
weekly to discuss her progress on her assigned tasks. The administrative judge
considered the appellant’s claims, ID at 13-15, but found, based on the record as a
whole, that the agency proved by substantial evidence that it afforded the
appellant not only a reasonable amount of time (102 days) but also an otherwise
reasonable opportunity to improve her performance, ID at 10-15. Bearing in
mind that the agency need only prove the elements of its case by substantial
evidence, 7 5 C.F.R. § 1201.56(b)(1)(i), we find that the appellant’s mere
disagreement with the administrative judge’s findings in this regard does not
provide a basis for us to disturb them.
¶17 Next, the appellant challenges the administrative judge’s finding that the
agency proved by substantial evidence that her performance was unacceptable.
PFR File, Tab 4 at 23-28. For example, she alleges that details surrounding the
“Ft. Gordon DFAC project 65% submittal” caused delays that were beyond her
control. However, the details she describes all occurred well before the PIP
period. Id. She asserts that certain of her supervisor’s statements regarding her
work assignments are “inaccurate” and claims that she completed them, but she
has pointed to no evidence that supports her assertion. Id. at 28. The appellant
also disputes the testimony of her supervisor that she exhibited rude and impolite
behavior toward other members of the architectural section, arguing that he “did
7
Substantial evidence is defined as that 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. It is a lower standard
of proof than preponderant evidence. 5 C.F.R. § 1201.4(p).
10
nothing to stop [] co-workers from yelling in [her] face,” id., but, again, she has
pointed to no evidence that supports her claim.
¶18 In finding that the agency proved by substantial evidence that the
appellant’s performance was unacceptable under the five objectives during the
PIP, as extended, the administrative judge correctly found that the substantial
evidence standard does not require an agency to produce evidence that is more
persuasive than that presented by the appellant. Leonard v. Department of
Defense, 82 M.S.P.R. 597, ¶ 5 (1999); ID at 17. The administrative judge
considered not only the testimony of the appellant’s supervisor, which he found
credible and probative, HCD I (testimony of the appellant’s supervisor); ID
at 15-17, but also the appellant’s testimony, which he found, in fact, confirmed
many of the communication difficulties observed b y her supervisor and the fact
that she was unable to resolve them, and that it also highlighted her inability to
deal with changing deadlines or coordinate assignments with other team
members, ID at 17. We have considered the appellant’s arguments on review, but
discern no reason to weigh the evidence or substitute our assessment of the record
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 he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987) (same); Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the Board may
overturn credibility determinations only when it has “sufficiently sound” reasons
for doing so). We find that the appellant’s mere disagreement with the
administrative judge’s findings and credibility determinations does not warrant
full review of the record by the Board. Gager v. Department of Commerce,
99 M.S.P.R. 216, ¶ 5 (2005); Weaver v. Department of the Navy, 2 M.S.P.R. 129,
133-34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).
11
The appellant did not show that the administrative judge erred in finding that she
failed to establish her affirmative defenses.
¶19 Next, the appellant challenges on review the administrative judge’s findings
that she failed to establish that her removal was due to discrimination based on
disability, 8 under the theories of denial of reasonable accommodation and
disparate treatment. PFR File, Tab 4 at 28-31. An appellant may establish a
disability discrimination claim based on a failure to accommodate by showing
that (1) she is a disabled person; (2) the action appealed was based on her
disability; and (3) to the extent possible, there was a reason able accommodation
under which she believes she could perform the essential duties of her position.
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 35 (2016),
clarified by Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 23-24.
¶20 The appellant challenges the administrative judge’s finding that her original
request to telework was unrelated to any issue of reasonable accommodation.
PFR File, Tab 4 at 28. The administrative judge further found, however, and the
appellant does not dispute, that she did later request to telework as a reasonable
accommodation for her disability, and that the agency granted her request, first
allowing her to telework 4 days a week, although later reducing the number of
days to 3, an arrangement that was in place for the duration of the PIP, as
extended. ID at 19-21. For the same reason, the appellant’s claim, even if true,
that the accommodation process took longer than usual, PFR File, Tab 4 at 25,
does not establish error in the administrative judge’s findings and conclusion.
The appellant also challenges the administrative judge’s recitation of the
testimony of the Head of the Civilian Personnel Office regarding the appellant’s
8
The nature of the appellant’s claimed disability is not addressed in the initial decision,
ID at 17-23, or in any of the pleadings on review, PFR File, Tabs 4, 6 -7. Nonetheless,
in her EEO complaint, which gave rise to this appeal, the appellant claimed mental
disability, “Anxiety, [Post-Traumatic Stress Disorder],” and physical disability,
“illness.” IAF, Tab 31 at 20.
12
request to be a leave donor recipient, and the resultant confusion and delay,
acknowledged by the agency, resulting from its use of the appellant’s middle
name as her last name. Id. at 29-30. The appellant does not suggest, however,
that the matter remained unresolved during the PIP. Id. The appellant also
disputes the administrative judge’s finding that telework was not typically
permitted for architects, id. at 30, but, even if the appellant is correct in her
assertion that telework was typically granted to architects on an ad -hoc basis, it
does not advance her discrimination claim because the agency granted her
requested reasonable accommodation, which was in effect during the pendency of
the PIP. Beyond her mere disagreement, the appellant has not shown that the
administrative judge erred in finding that, assuming the appellant is disabled, she
failed to establish that her removal was based on a failure to accommodate. ID
at 22-23.
¶21 The appellant also challenges the administrative judge’s finding that she did
not establish her claim of disparate treatment based on disability. Here, the
appellant acknowledges that no other architects in the architectural section were
removed during her tenure. Further, although she refers to a particular employee
in an effort to show that “I was singled out for removal,” she does not suggest
that that employee had performance issues or was otherwise similarly situated to
her. PFR File, Tab 4 at 30-31; Davis v. U.S. Postal Service, 120 M.S.P.R. 122,
¶ 16 (2013). Nor has the appellant shown that her disability was a motivating
factor or but-for cause in her removal. Forte v. Department of the Navy,
123 M.S.P.R. 124, ¶ 33 (2016). Therefore, the appellant has failed to show that
the administrative judge erred in finding that she did not establish her claim of
disparate treatment based on her disability. See Pridgen, 2022 MSPB 31, ¶ 40.
¶22 The appellant does not, on review, challenge with any spe cific claim of
error the administrative judge’s finding that she failed to establish that the
agency’s action was based on discrimination due to age or sex. PFR File, Tab 4
at 31. The administrative judge applied the burden-shifting analysis under
13
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), finding that
the appellant’s anecdotal recollections 9 failed to show employment decisions
personal to her that were based on her sex or age and that, based on the record as
a whole, she failed to present evidence that similarly situated coworkers not in
her protected class who suffered from failing performance were treated more
favorably. The administrative judge found no evidence that the decision to
remove the appellant was motivated by animus toward her due to her age or sex,
and that the agency’s explanation for the action, the appellant’s failure to meet
her performance requirements, was not shown to be false or some façade to hide
an improper motive. ID at 23-25. We find no reason to disturb the administrative
judge’s decision, as it is consistent with our recent holding in Pridgen,
2022 MSPB 31, ¶ 25 .
¶23 Finally, the appellant argues that certain evidence was available but was not
presented due to the incompetence of her non-attorney representative, his
unfamiliarity with her case, and his focus on irrelevant issues . PFR File, Tab 4
at 6, Tab 7 at 5. The administrative judge marked proffered timely filed exhibits
for identification, but stated that they “must be introduced at the hearing,” at
which time he would rule on their admissibility. IAF, Tab 52. To the extent the
appellant’s representative failed to introduce any such exhibits, an appellant is
responsible for the errors of her chosen representative. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981). The appellant appeals to the Board for
consideration on the basis that she is now pro se on petition for review. PFR File,
Tab 7 at 4. While it is true that pro se appellants are not required to plead issues
with the precision of an attorney in a judicial proceeding, Gilliam v. Office of
Personnel Management, 91 M.S.P.R. 352, ¶ 7 (2002), the appellant in this case
9
For example, the administrative judge considered the appellant’s claims that she
overheard her supervisor tell another employee that she was being selected to do certain
work because she was “young and energetic,” that he thought younger people were
more adept at learning a 3-D modeling program, and that the appellant was not often
asked to socialize with other male engineers. ID at 24-25.
14
was represented, initially by counsel, IAF, Tab 1, and th ereafter by a non-attorney
representative, IAF, Tab 26, during the processing of her appeal, up to and
including at the hearing. In any event, the consideration afforded a pro se
appellant does not extend to a less strict interpretation of the law. 10
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
¶24 As noted, during the pendency of the petition for review in this case, the
United States Court for the Federal Circuit issued Santos, 990 F.3d at 1360-63, in
which it held that, in addition to the five elements of the agency’s case, as set
forth above, the agency must also justify the initiation 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, 2022 MSPB 11, ¶ 16. Although the record in this case
already contains evidence suggesting that the appellant’s performance prior to the
initiation of the PIP was unacceptable, IAF, Tab 16 at 68, 70, Tab 43 at 4-10, 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
10
With her petition, the appellant has submitted 70 additional pages of documents.
PFR File, Tab 4 at 70-139. Some are not material, id. at 70-71, and others are not new,
id. at 88-97. The Board generally will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). In addition, the Board generally will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). Absent any such showing by the
appellant, we have not considered these documents. Other documents the appellant has
submitted on review are part of the record below and do not therefore constitute new
evidence, PFR File, Tab 4 at 73-80, 98-123, 125-39. Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980).
15
argument and evidence on this issue, and shall hold a supplemental hearing if
appropriate. Id., ¶ 17.
¶25 The administrative judge shall then issue a new initial decision consistent
with Santos. See Lee, 2022 MSPB 11, ¶ 17. 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, and the appellant’s affirmative defenses, as modified herein
to apply the proper standard. 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).
ORDER
¶26 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order .
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.