Mary Jordan v. Department of the Navy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY J. JORDAN, DOCKET NUMBER
Appellant, DC-0432-16-0370-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 3, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kristen Farr, Esquire, and Rosemary Dettling, Esquire, Washington, D.C.,
for the appellant.
Crista Kraics, Quantico, 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
affirmed her removal under 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 Washington Regional office for further
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
adjudication consistent with Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The following facts are not in dispute. The appellant was previously
employed as a Financial Management Analyst, NH-0501-03, in Quantico,
Virginia. Initial Appeal File (IAF), Tab 1 at 2. Her position was covered under a
Contribution-based Compensation Appraisal System (CCAS), which is similar to
a traditional performance-based appraisal system. IAF, Tab 7 at 124-205; see
generally 5 U.S.C. § 4703 (authorizing OPM to conduct demonstration projects);
Civilian Acquisition Workforce Personnel Demonstration Project, Department of
Defense, 64 Fed. Reg. 1426-01 (Jan. 8, 1999). Under the CCAS, an employee’s
performance is assessed based on her overall contribution to the agency’s mission
in six contribution factors, which is expressed as a numerical “contribution
score.” Id. at 108, 184; IAF, Tab 23 at 2. If an employee’s contribution score
during an appraisal period is less than her expected contribution level, she may be
placed on a Contribution Improvement Plan (CIP) to provide her with a
reasonable opportunity to improve her performance in the identified factors. IAF,
Tab 7 at 189-90; Tab 23 at 2. If the employee’s performance does not sufficiently
improve during the CIP period, the agency may take an action, including a
reduction in pay or grade (a change to a lower “broadband level”), a
reassignment, or removal. IAF, Tab 7 at 190; id. at 164-65, 182-83.
¶3 On August 25, 2015, the appellant was informed that her contribution was
unacceptable in all six contribution factors and was placed on a 60 -day CIP. Id.
at 69-79. By letter dated December 11, 2015, the agency informed the appellant
that she met the expectations for improvement in contribution factor 3, but her
performance continued to remain unacceptable in contribution factors 1, 2, 4, 5,
and 6 at the end of the CIP, and proposed her removal. Id. at 52-58. After
reviewing the written response and accompanying exhibits provided by the
3
appellant’s attorney, the deciding official sustained the appellant’s removal by a
letter dated February 10, 2016. Id. at 22-50.
¶4 The appellant timely appealed her removal to the Board. IAF, Tab 1. After
holding the appellant’s requested hearing, the administrative judge issued an
initial decision affirming the agency’s removal action. IAF, Tab 25, Initial
Decision (ID) at 1, 37. In the decision, the administrative judge determined the
following: the agency’s performance appraisal system was approved by the
Office of Personnel Management (OPM); the appellant’s performance standards
were valid; the agency communicated the appellant’s performance expectations to
her at the beginning of the appraisal period; the agency warned the appellant of
the inadequacies of her performance and provided her with an adequate
opportunity to improve her performance; and the appellant ’s performance
remained unacceptable in three of the six contribution factors during the CIP
period. 2 ID at 23-29. The administrative judge also denied the appellant’s
affirmative defenses of discrimination on the bases of age and race, and reprisal
for engaging in equal employment opportunity (EEO) activity. ID at 30-36. The
appellant has filed a petition for review, and the agency has not filed a response.
Petition for Review (PFR) File, Tab 1.
2
In the initial decision, the administrative judge noted that even though the proposal
letter indicated that the appellant’s performance in contribution factor 6 was
unacceptable, it also concluded that the appellant “minimally met [contribution]
Factor 6” during the CIP period. ID at 4 n.2; IAF, Tab 7 at 56. Consequently, she
determined that the agency failed to demonstrate that the appellant’s performance was
unacceptable in this contribution factor. ID at 4 n.2. We see no reason to disturb this
finding on review. Additionally, although a heading in the initial decision states that
the appellant’s performance failed to meet the established performance standards in
four critical elements, the discussion and findings that follow make clear that the
administrative judge addressed the four remaining contribution factors and ultimately
found that the appellant failed to meet the requirements for three of them (contribution
factors 1, 2, and 4). ID at 24-29. Any error in this misstatement was inadvertent and
harmless, and did not affect the outcome of the decision. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was
not prejudicial to a party’s substantive rights provided no basis for reversal of an initial
decision).
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 As an initial matter, we note that although the administrative judge
correctly identified the performance system at issue in this appeal as a CCAS, she
applied the elements of a typical chapter 43 appeal. ID at 21-23; see Thompson v.
Department of the Army, 122 M.S.P.R. 372, ¶¶ 3, 7 (2015). The Board has
recognized that the elements an agency must prove to prevail in an appeal of a
CCAS contribution-based action are somewhat different than those in a traditional
performance-based action under chapter 43, but that contribution-based actions
are still appealable to the Board under 5 U.S.C. chapter 43. Thompson,
122 M.S.P.R. 372, ¶ 3; Lin v. Department of the Air Force, 2023 MSPB 2,
¶¶ 12-18. Under the CCAS at issue in this appeal, the agency was required to
show the following by substantial evidence: 3 (1) it notified the appellant that she
would be placed on a CIP; (2) it informed her of what she must do during the CIP
to demonstrate acceptable contribution and warned her that failure to do so could
result in an adverse action; (3) it gave her a reasonable opportunity to
demonstrate acceptable contribution during the CIP; and (4) the appellant ’s
contribution was unacceptable during the CIP. Thompson, 122 M.S.P.R. 372, ¶ 7.
The appellant does not assert that she was unaware of the applicable elements or
burdens in her performance-based adverse action appeal. 4 Nonetheless, after
3
Contrary to the appellant’s assertion on review, PFR File, Tab 1 at 6, the applicable
standard in performance-based actions such as the one at issue in this appeal is a
substantial evidence standard. See Thompson, 122 M.S.P.R. 372, ¶ 7. 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).
4
The appellant asserts that the administrative judge should have considered the
applicable factors from Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), in
assessing the reasonableness of the agency’s removal decision. PFR File, Tab 1 at 6-7.
However, it is well settled that the Douglas factors do not apply in performance-based
adverse action appeals under chapter 43. Lisiecki v. Merit Systems Protection Board,
769 F.2d 1558, 1566-67 (Fed. Cir. 1985); Lee v. Department of Labor, 110 M.S.P.R.
355, ¶ 12 (2008).
5
considering the facts of this case, we find that the application of the above
standards would not change the result and therefore we modify the initial decision
accordingly.
The administrative judge correctly determined that, under the law in effect at the
time, the agency satisfied its burden of proving that the appellant was provided
with a reasonable opportunity to demonstrate acceptable contribution during the
CIP period but her contribution level continued to remain unacceptable.
¶6 Regarding the first two elements detailed above, the appel lant does not
challenge the administrative judge’s findings that the agency notified her in
advance that she would be placed on the CIP, informed her of what she needed to
do during the CIP period to demonstrate acceptable contribution, and notified her
of the potential consequences if she failed to improve her contribution level
during the CIP period. ID at 4, 29; IAF, Tab 7 at 57, 72; Thompson,
122 M.S.P.R. 372, ¶ 7. On review, the appellant generally challenges the
administrative judge’s findings that she was provided with a reasonable
opportunity to improve her contribution level during the CIP period and that her
performance nonetheless remained unacceptable. PFR File, Tab 1 at 8-13.
¶7 Regarding her claim that the CIP did not provide her with a reasonable
opportunity to improve her performance, the appellant first argues that the CIP
requirements were unreasonably onerous and held her to an impermissible
absolute standard. Id. at 8-10. An “absolute standard” is a standard under which
a single incident of poor performance will result in an unsatisfactory rating on a
critical element. Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, ¶ 9
(2004). As an initial matter, the proposition that absolute performance standards
are per se invalid has been rejected by the Federal Circuit and the Board.
Guillebeau v. Department of the Navy, 362 F.3d 1329, 1337 (Fed. Cir. 2004);
Jackson, 97 M.S.P.R. 13, ¶¶ 11-12. Regardless, there is no evidence in the record
suggesting that the requirements of any of the factors held the appellant to an
absolute standard. Rather, the notice of proposed removal and the accompanying
spreadsheet maintained by the appellant’s manager during the CIP period identify
6
that the appellant failed three of the six assigned tasks under contribution
factor 1, three of the six tasks under contribution factor 2, and one of the four
tasks under contribution factor 4. 5 IAF, Tab 7 at 61-64.
¶8 In determining whether an agency has afforded an appellant a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of her position, the performance
deficiencies involved, and the amount of time that is sufficient to enable the
employee to demonstrate acceptable performance. Lee v. Environmental
Protection Agency, 115 M.S.P.R. 533, ¶ 32 (2010); see Towne v. Department of
the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013). The administrative judge provided a
detailed analysis of these relevant factors, noting that the appellant’s performance
standards clearly described the performance expected of her and that the detailed
task descriptions in the CIP memorandum provided her with clear guidance and
objective benchmarks for success. ID at 23-24; see Towne, 120 M.S.P.R. 239, ¶
23. The administrative judge also found that the agency informed the appellant of
her performance deficiencies prior to the CIP, documented her deficiencies during
the CIP in emails and on a spreadsheet, and provided her with ongoing feedback
on her performance. IAF, Tab 7 at 35-50, 61-64, 69-79; ID at 29. The
appellant’s supervisor also met with the appellant several times during the CIP
period and created a memorandum documenting what was discussed during at
least one of those meetings. ID at 6; IAF, Tab 7 at 56-57, 66-67; Towne, 120
M.S.P.R. 239, ¶ 20 (finding that an agency showed that it afforded a reasonable
5
The appellant’s claim that she was permitted “zero to four errors” for some tasks is
also not supported by the record. PFR File, Tab 1 at 8. Contribution factors 1 and 2
required that the appellant submit a number of different spreadsheets, slides, and
reports with, depending on the task, no more than two to four errors on the first draft,
and zero errors on the second draft. IAF, Tab 7 at 73-75. The appellant also argues
that the 2-day limit for her to reply to emails from her manager was unr easonable. PFR
File, Tab 1 at 15; IAF, Tab 7 at 63, 77. However, this requirement was related to
contribution factor 5, which the administrative judge did not sustain, and thus is not at
issue on review. ID at 29.
7
opportunity to improve when it met with the appellant in person and provided
written and oral feedback). Finally, the CIP ran for the 60 days required by the
agency’s performance management system. IAF, Tab 7 at 23, 72, 190.
¶9 The appellant also reasserts that the CIP was unreasonable because it
required her to complete tasks that were not typical job responsibilities for
Financial Management Analysts, such as providing written summaries of
meetings she attended and scheduling meetings with her supervisor to
demonstrate her competency with agency systems and programs. PFR File, Tab 1
at 9-11. The administrative judge considered and rejected this argument below,
crediting the testimony of the appellant’s supervisor stating that the appellant was
properly apprised of these tasks in advance, and that these tasks were necessary to
measure the appellant’s proficiency and competency in her job duties. ID
at 26-27. We see no reason to disturb this finding on review. See Haebe v.
Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the
Board must defer to an administrative judge’s credibility determinations when
they are based on observing the demeanor of witnesses testifying at a hearing and
the Board may only overturn such determinations when it has “sufficiently sound”
reasons for doing so).
¶10 Accordingly, we discern no basis for disturbing the administrative judge ’s
well-reasoned conclusion that the agency provided the appellant with a reasonable
opportunity to demonstrate an acceptable contribution level during the CIP
period. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding
no reason to disturb the administrative judge’s findings when she 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).
¶11 Next, the appellant challenges the administrative judge ’s conclusion that her
contribution at the end of the CIP period remained inadequate. PFR File, Tab 1
at 10-13. Specifically, she argues that the administrative judge failed to consider
8
her improvements during the CIP period, noting that she managed to complete a
number of the assigned tasks for each of the factors for which her performance
was ultimately deemed inadequate. Id.; IAF, Tab 7 at 61-64. As a result, she
argues that the administrative judge erred in concluding that her performance
warranted an unacceptable rating in any of the factors “as a whole,” and
consequently, in concluding that her contribution remained unacceptable during
the CIP period. PFR File, Tab 1 at 10-13.
¶12 An agency need not show that an employee’s performance was unacceptable
on a majority of components of a critical element to prove unacce ptable
performance on the critical element as a whole. See, e.g., Rogers v. Department
of Defense Dependents Schools, 814 F.2d 1549, 1554 (Fed. Cir. 1987) (finding
that an unsatisfactory performance on one of six components of one critical
element and two of four components of another warranted an unacceptable rating
on both critical elements); Lee, 115 M.S.P.R. 533, ¶ 37 (finding that
unsatisfactory performance in two of six components of one critical element
warranted an unacceptable rating in that element). Indeed, unacceptabl e
performance in only a single component of a critical job element can be sufficient
to justify removal for unacceptable performance. Wallace v. Department of the
Air Force, 879 F.2d 829, 834 (Fed. Cir. 1989); see Shuman v. Department of the
Treasury, 23 M.S.P.R. 620, 627 (1984).
¶13 Here, the administrative judge provided detailed findings regarding the
appellant’s numerous performance deficiencies during the CIP period. ID
at 24-28. Regarding the first contribution factor, the administrative judge
determined that the appellant failed to timely provide required summaries of
meetings, failed to satisfactorily complete exhibits as directed, and never
scheduled a meeting with her supervisor to demonstrate that she knew how to
navigate necessary systems for completing budget submission d ocuments even
though the CIP notice specifically instructed her to do so. ID at 24-25; IAF,
Tab 7 at 52-53, 61-62, 74. Regarding contribution factor 2, the administrative
9
judge noted that the appellant failed to provide summaries of spend plan meetings
for five of the six projects to which she was assigned. ID at 26. The appellant
also failed to timely complete revisions to work, and in one instance submitted a
report that still contained multiple errors after three rounds of revision, ultimately
requiring her supervisor to complete the corrections herself due to time
constraints. IAF, Tab 7 at 54, 62; ID at 26-27. Regarding factor 4, the
administrative judge noted that the appellant failed to schedule a meeting to
demonstrate her competency with agency systems and programs for which she
was not seeking training, despite specific instructions to do so by her supervisor.
ID at 27-28; IAF, Tab 7 at 55, 63. Consequently, the appellant’s supervisor was
unable to assess her competency in those systems to d etermine whether the
appellant needed additional training. ID at 28.
¶14 In making these findings, the administrative judge made specific credibility
determinations based on her observations of the testimony and her review of the
documentary evidence in the record before her. ID at 24-29. Accordingly, we
find no error in the administrative judge’s conclusion that the agency met its
burden in proving that the appellant’s contribution level remained unacceptable in
contribution factors 1, 2, and 4 at the end of the CIP period, and we see no reason
to disturb these findings on review.
The appellant failed to prove her affirmative defense of reprisal for EEO activity.
¶15 The appellant also reasserts that she was removed in reprisal for engaging in
the EEO complaint process. PFR File, Tab 1 at 13-17. The record reflects that
the appellant filed an EEO complaint alleging discrimination on the bases of race,
age, and general allegations of reprisal in July 2014 and February 2015, and
amended the latter complaint on August 31, 2015, to include her placement on the
CIP. IAF, Tab 20 at 6; Tab 22 at 11-13, 119-24; Tab 24, Hearing Compact Disc
(testimony of the appellant). As the administrative judge correctly identified, to
establish an affirmative defense of reprisal for protected EEO activity the
appellant must first demonstrate that her EEO activity was a motivating factor in
10
the agency’s action. Gardner v. Department of Veterans Affairs, 123 M.S.P.R.
647, ¶ 30 (2016), clarified by Pridgen v. Office of Management and Budget, 2022
MSPB 31, ¶¶ 23-24; Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51
(2015), overruled in part by Pridgen, 2022 MSPB 31, ¶¶ 23-25; ID at 30-32. 6 If
the appellant meets her burden, the agency then must show by preponderant
evidence that the action was not based on the prohibited personnel practice, i.e.,
that it still would have taken the contested action absent the discriminatory or
retaliatory motive. Savage, 122 M.S.P.R. 612, ¶ 51.
¶16 The administrative judge determined that the appellant had engaged in
protected activity by filing EEO complaints. ID at 32-33. The administrative
judge also determined that the proposing official was aware of the appellant ’s
EEO complaint and knew that she was named in it, and that the appellant
amended her EEO complaint approximately 3 months prior to her proposed
removal. Id. However, in finding that the appellant failed to demonstrate that her
protected activity was a motivating factor in the agency’s decision to remove her,
the administrative judge noted that aside from the close proximity in time
between the amending of her EEO complaint and her proposed and effectuated
removal, the appellant presented no evidence that any of the agency’s actions
were motivated by a desire to retaliate against her for the filing of the EEO
complaint. ID at 33-35. Instead, as the administrative judge observed, the close
proximity in time between the appellant’s 2014 and 2015 EEO complaints and
amendments, and her placement on the CIP and eventual removal can be
explained by the fact that the appellant filed or amended an EEO complaint each
time after she received a performance appraisal that identified concerns with her
performance. ID at 32-33.
6
Because we agree with the administrative judge’s finding that the appellant failed to
prove that her EEO activity was a motivating factor in her removal, we do not reach the
question of whether the appellant proved that retaliation was a “but-for” cause of the
removal action. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
11
¶17 Furthermore, the administrative judge determined that the agency presented
ample evidence that the appellant’s significant performance deficiencies prior to
and during the CIP were the actual reasons she was removed. ID at 33-35; see
Gardner, 123 M.S.P.R. 647, ¶ 34 (finding that the appellant failed to establish
EEO retaliation when, although she asserted that her supervisor knew about her
EEO complaint, the proposal notice was specific as to her misconduct).
Accordingly, we agree with the administrative judge’s findings in this regard and
decline to reweigh this evidence on review. See Broughton, 33 M.S.P.R. at 359
(observing that mere reargument of factual issues already raised and properly
resolved by the administrative judge below do not establish a basis for review). 7
Nevertheless, remand is necessary to afford the parties an opportunity to provide
evidence and argument concerning whether the appellant’s placement on the CIP
was proper.
¶18 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 part of the agency’s burden under 5 U.S.C. chapter 43 is to
justify the institution of a performance improvement pla n (PIP) by proving by
substantial evidence that the employee’s performance was unacceptable prior to
that time. Following the issuance of Santos, the Board issued an Opinion and
Order in Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 15, which
incorporated the changes made by Santos and set forth the agency’s burden of
proof, concluding that in order to defend an action under chapter 43 the agency
must prove the following by substantial evidence: (1) OPM approved its
performance appraisal system and any significant changes thereto; (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.
7
The appellant does not appear to contest the administrative judge ’s finding that the
appellant failed to prove her affirmative defenses of discrimination on the bases of age
and race, and so we have not addressed them here.
12
§ 4302(c)(1); (4) the appellant’s performance during the appraisal period was
unacceptable in one or more critical elements; (5) the agency warned the
appellant of the inadequacies in her performance during the appraisal period and
gave her 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.
¶19 Although the appeal in Santos involved a performance-based adverse action
under a traditional performance-based appraisal system, we conclude that the
court’s reasoning applies equally to contribution-based adverse actions under
CCAS. See Lin, 2023 MSPB 2, ¶ 19 (applying Santos to a performance-based
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
assessment in any one contribution 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 her that she may face adverse action “unless the contribution
increases to, and is sustained at, a higher level. . . .” Id.; cf. Santos, 990 F.3d at
1360-61 (examining similar 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).
¶20 The Federal Circuit’s decision in Santos applies to all pending cases,
including the instant case, regardless of when the events took place. Lee,
2022 MSPB 11, ¶ 16. Although the record in this appeal contains some evidence
indicating that the appellant’s contribution level leading up to the CIP was
unacceptable, see IAF, Tab 7 at 69-70, 81-98, we remand the appeal to give the
parties the opportunity to present argument and additional evidence on the issue,
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.
13
¶21 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 her 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-CIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defenses, she 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 her
legal reasoning, as well as the authorities on which that reasoning rests).
ORDER
¶22 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.