Janakkumar Patel v. Department of Commerce ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANAKKUMAR T. PATEL, DOCKET NUMBER
Appellant, DC-0432-17-0032-I-1
v.
DEPARTMENT OF COMMERCE, DATE: February 1, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Janakkumar T. Patel, Nashville, Tennessee, pro se.
Taron Murakami, Alexandria, 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 the agency’s action removing him for unacceptable performance
pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the
petition for review. We AFFIRM the initial decision IN PART AS MODIFIED to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
(1) supplement the administrative judge’s analysis to find that the agency
communicated its performance standards to the appellant, and (2) apply the
Board’s current standard for analyzing age and national origin discrimination
claims. We VACATE the initial decision IN PART and REMAND the appeal to
the regional office for further adjudication consistent with the U.S. Court of
Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics &
Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant was employed at the agency as a Patent Examiner
(Examiner), GS-11. Initial Appeal File (IAF), Tab 4 at 45. This position requires
incumbents to examine assigned patent applications from first action to their final
disposition within an assigned period of time. IAF, Tab 15 at 13. The
performance plan for this position includes the following critical elements:
(1) quality; (2) production; and (3) docket management. 2 IAF, Tab 5 at 21.
¶3 Within the quality element, the plan distinguishes between category 1,
category 2, and category 3 errors, based on the activities involve d. IAF, Tab 15
at 49-51. As a GS-11 Examiner, to achieve a marginal rating in the quality
element, which is the minimum rating above unacceptable, the appellant was
required to have an error rate in category 1 and category 2 of 7.49% or less. 3 Id.
at 54-55. The activities under which category 2 errors may be charged include,
among other tasks, “[m]aking proper rejections under 35 U.S.C. §§ 102 and 103
with supporting rationale, or determining how claim(s) distinguish over the prior
[issued patents].” Id. at 50. The plan provides that if an examiner disagrees with
the determination that he has committed an error, he has the opportunity to rebut
2
The performance plan also includes stakeholder interaction, which is a noncritical
element. IAF, Tab 5 at 21.
3
Category 3 errors only apply to certain work of GS-14 and GS-15 Examiners and thus
were not applicable to the appellant. IAF, Tab 15 at 50-51.
it or, if the issue remains unresolved, make a pres entation regarding the issue to a
director. Id. at 49.
¶4 On October 6, 2014, the agency orally warned the appellant that his
performance was unacceptable in the Quality (Category 2) critical element. IAF,
Tab 5 at 69. Subsequently, the agency issued the a ppellant a letter confirming the
oral warning. Id. at 69-74. The agency informed him that, during the fourth
quarter of fiscal year 2014, 5 of the 39 applications that he submitted contained
category 2 errors, which was an unacceptable error rate of 12.82%. Id. at 69. It
stated that the seven bi-week period between October 1, 2014 and January 10,
2015, would serve as an evaluation period during which he must achieve the
marginal level of performance. Id. at 73-74. During the evaluation period, he
was required to achieve at least the marginal level of performance, meaning that
his error rate could not exceed 7.49% for category 2 errors. Id. at 74. The letter
further stated that this period would be extended one bi-week for every 80 hours
of approved absence. Id. As the appellant had taken 113 hours of leave, the
improvement period was extended to January 24, 2015. IAF, Tab 6 at 6.
¶5 On March 19, 2015, the agency warned the appellant in writing of his
unacceptable performance. Id. at 103-08. It stated that, during the oral warning
evaluation period, 7 of the 55 actions he submitted contained a category 2 error,
for an unacceptable error rate of 12.73%. Id. at 103. Thus, the agency placed the
appellant under a “written warning of unacceptable performance” beginning on
March 22, 2015, and ending on June 27, 2015, to be extended one bi -week for
every 80 hours of approved leave. Id. at 108. The period was extended until
July 11, 2015. IAF, Tab 7 at 6. Six of the 47 actions that the appellant prepared
during this period contained category 2 errors. IAF, Tab 14 at 60 -64. Thus, his
error rating during the period was 12.77%, which was greater than the maximum
allowable error rate of 7.49%. 4 IAF, Tab 5 at 5-13. The appellant chose not to
rebut any of the errors charged during the written warning period. IAF, Tab 14
at 68.
¶6 On October 23, 2015, the agency proposed the appellant’s removal for
unacceptable performance in the Quality critical element on the basis of his
12.77% category 2 error rate during the written warning period. IAF, Tab 5
at 5-13. The agency explained that all of these errors involved his responsibility
to “formulat[e] rejections under 35 U.S.C. §§ 102 and 103 with supporting
rationale, or [determine] how claim(s) distinguish over the prior [issued patents].”
Id. at 6-11. He responded orally and in writing. IAF, Tab 4 at 52 -109. The
agency imposed the removal, effective March 25, 2016. Id. at 47-50.
¶7 The appellant filed the instant appeal challenging his removal and requested
a hearing. 5 IAF, Tab 1. After conducting the appellant’s requested hearing, the
administrative judge issued an initial decision sustaining the removal . IAF,
Tab 28, Initial Decision (ID). Specifically, he sustained the agency’s charge and
found that the appellant did not prove his affirmative defense of discrimination on
the bases of race, national origin, or age. ID at 3-9.
¶8 The appellant has filed a petition for review and the agency has responded
in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance-based removal under chapter 43, the agency must
4
The agency originally included 8 errors out of 49 actions, which included 2 errors
from cases that the appellant had begun to process prior to the warning period, but it
later corrected the total actions to 47. IAF, Tab 14 at 60 -61, 69-70.
5
The agency issued a final decision on the appellant’s equal employment opportunity
complaint on September 15, 2016. IAF, Tab 1 at 12-24.
establish the following by substantial evidence: 6 (1) the Office of Personnel
Management (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 his position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302(b)(1); 7 (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 the 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).
¶10 Here, the administrative judge found that OPM approved the agency’s
appraisal system, the performance standards at issue are valid under 5 U.S.C.
§ 4302(b)(1), the agency warned the appellant about his inadequate performance
and gave him a reasonable opportunity to demonstrate acceptable performance,
and his performance remained unacceptable in the Quality critical element.
ID at 3-9; IAF, Tab 5 at 26-39, Tab 15 at 115. The appellant does not challenge
the administrative judge’s findings regarding OPM’s approval and the validity of
the standards under 5 U.S.C. § 4302(b)(1), and we find no reason to disturb them.
PFR File, Tab 1. Further, although the administrative judge did not make a
finding that the appellant received notice of his performance standards, the record
reflects that the appellant acknowledged discussing his position and receiving his
performance standards in October 2013 and October 2014. IAF, Tab 5 at 16, 45.
6
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).
7
As a result of the enactment of the National Defense Authorization Act 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).
Accordingly, we modify the initial decision to find that the agency notified the
appellant of his performance standards.
¶11 Thus, the only remaining issues concerning the agency’s burden of proof
based on the Board’s case law at the time the initial decisi on was issued are
(1) whether the agency warned the appellant about his performance and gave him
a reasonable opportunity to improve and (2) whether his performance remained
unacceptable in at least one critical element. As discussed below, we find that the
agency met its burden regarding these issues.
The agency warned the appellant about his performance and gave him a
reasonable opportunity to improve.
¶12 The administrative judge found that the agency proved by substantial
evidence that it warned the appellant about his performance and provided him
with a reasonable opportunity to improve. ID at 4-6. He noted that the agency
provided the appellant with an oral and written warning and that, during the
written warning period, the appellant’s first-line supervisor met with him once
per week. Id. The appellant argues that the agency did not provide him a
sufficient and proper opportunity to improve and instead attempted to undermine
him by collecting information during weekly meetings and returning cases
multiple times. PFR File, Tab 1 at 4-5.
¶13 The employee’s right to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013). In determining
whether the agency has afforded the appellant a reasonable opportunity to
demonstrate acceptable performance, relevant factors include the nature of the
duties and responsibilities of the appellant’s position, the performance
deficiencies involved, and the amount of time which is sufficient to enable th e
employee to demonstrate acceptable performance. Id.¶14 The appellant was expected to draft actions that were free from errors in
matters such as how a claim was distinguishable from prior issued patents. IAF,
Tab 15 at 50-51, 54-55. However, he exceeded this error rate. IAF, Tab 5
at 5-13. The agency’s expectation over this aspect was not unreasonable.
Further, the agency provided the appellant a sufficient time period to improve by
issuing an oral warning to him in October 2014 but not proposing his removal
until October 2015, after providing him with two improvement periods of over
seven bi-weeks. IAF, Tab 5 at 5-13, 69-74, Tab 6 at 6, 103-08, Tab 7 at 6; see
Lee, 115 M.S.P.R. 533, ¶ 33 (finding that a performance improvement period of
60 days was sufficient).
¶15 The appellant asserts that his first-line supervisor used the weekly meetings
to collect evidence to support his removal. PFR File, Tab 1 at 4. He also asserts
that his first-line supervisor returned cases to him multiple times in an untimely
manner and asked him to make changes without proper directions or guidance,
with the goal of hindering his production. Id. at 4-5. In finding that the agency
provided the appellant with the proper opportunity to improve, the administrative
judge credited the testimony of the appellant’s first -line supervisor that, during
the second improvement period, he met with the appellant at least once per week
to discuss errors and how to correct them. ID at 5-6; Hearing Transcript (HT) at
73 (testimony of the appellant’s first-line supervisor); IAF, Tab 14 at 73-189.
The administrative judge also credited the first-line supervisor’s testimony that he
returned the appellant’s work, sometimes on multiple occasions, because of
continued problems with the work product. ID at 8; HT at 73 -74 (testimony of
the appellant’s first-line supervisor). The appellant’s arguments do not provide a
reason to disturb the administrative judge’s finding, which is implicitly based
upon the demeanor of the appellant’s first-line supervisor during the hearing. 8
8
The appellant argues that his group director denied him a transfer request and did not
offer him a last-chance agreement prior to removing him. PFR File, Tab 1 at 5; IAF,
Tab 17 at 5-9. He has not stated any basis for his entitlement to a transfer or a last -
chance agreement and thus this argument does not provide a reason for disturbing the
initial decision. See Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative judge’s
See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir.
2016) (finding that the Board must defer to an administrative judge’s findings
when they are implicitly based upon the demeanor of witnesses who testified at
the hearing).
The appellant’s performance remained unacceptable in the Quality element.
¶16 The administrative judge found that the agency proved by substantial
evidence that the appellant’s performance remained unacceptable in the Quality
element. ID at 6-9. Specifically, he found that the appellant’s first-line
supervisor provided him with notice and explained each charged error as it
occurred as well as 14 days to submit a response to the error but that the appellant
did not respond. ID at 6-7; IAF, Tab 7 at 43-134, Tabs 8-13, Tab 14 at 1-70.
¶17 The appellant argues that, although there had been no issue with his
performance when he was a GS-7 and GS-9 Examiner, after he was promoted to a
GS-11 Examiner with the accompanying more complicated work, his first -line
supervisor did not provide proper guidance. PFR File, Tab 1 at 4 -5. The
appellant’s fist-line supervisor testified that he had expressed concerns about
promoting the appellant to the GS-11 level because of the quality of his work and
his inability to handle the more complicated duties of a GS-11 Examiner. HT
at 51 (testimony of the appellant’s first-line supervisor). Additionally, in contrast
to a GS-7 or GS-9 Examiner, the agency expects a GS-11 Examiner to work
independently and to submit many actions in final form. HT at 25-26 (testimony
of the appellant’s first-line supervisor), at 194-95 (testimony of the deciding
official); compare IAF, Tab 15 at 41-42, with id. at 43-44. Thus, the appellant’s
arguments that his performance at the lower grades had been acceptable or that
his first-line supervisor should have provided him more guidance are not
findings when he considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions).
persuasive because, as opposed to his prior position, the GS -11 position required
him to perform additional duties and to do so more independently than before.
¶18 The appellant also challenges the method by which his first -line supervisor
and the agency reviewed his work. PFR File, Tab 1 at 4 -5. For instance, he
states that the agency erred in its determination that four cases included clear
errors, that his first-line supervisor found clear errors without explaining how his
interpretation was incorrect or why the references he used in the cases were
unreasonable, and that his first-line supervisor returned some of his work to him
eight times. Id.; IAF, Tab 23 at 15-19, 46-47.
¶19 These arguments are not persuasive. The administrative judge credited the
testimony of the appellant’s first-line supervisor that he spent significant time
with the appellant explaining the errors in his cases and that any returned work
was due to persistent issues with the cases. ID at 8; HT at 73 -75 (testimony of
the appellant’s first-line supervisor). The appellant’s argument that his
performance was acceptable is belied by the fact that he did not challenge the
errors at the time. IAF, Tab 14 at 68. Additionally, the agency’s quality
assurance reviewer agreed with the appellant’s first -line supervisor that the cases
contained clear errors. Id. at 60.
¶20 Further, because the administrative judge’s finding that the appellant’s
performance remained unacceptable is implicitly based upon the credible
demeanor of his first-line supervisor at the hearing, the finding is entitled to
deference. See Purifoy, 838 F.3d at 1373. We find that the appellant’s
challenges do not provide a basis for disturbing that finding because they
constitute mere disagreement with the initial decision and are not supported by
the record. 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 on issues of credibility). Therefore, we agree with the
administrative judge that the appellant’s performance remained unacceptable in
the Quality element, despite the efforts of the agency.
The appellant did not prove age or national origin discrimination.
¶21 Finally, the appellant reasserts that the agency discriminated against him on
the bases of age and national origin. 9 PFR File, Tab 1 at 5; IAF, Tab 23 at 43-45.
Below, he asserted that he did not believe that other employees in his unit who
were younger and of a different national origin had to wait for over 2 weeks to
have their cases reviewed, had their work returned to them as often as he did, or
received notification of errors in bulk emails. IAF, Tab 23 at 44-45. The
administrative judge found that the appellant’s nonspecific allegations without
supporting evidence were insufficient to support his discrimination claims. ID
at 9. He also found that the appellant had failed to present any evidence to show
that “the agency’s action was motivated by discrimination.” Id. On review, the
appellant asserts that younger examiners of a different national origin were
“probably” not subject to the same high number of returns and vague guidance
addressing how to correct office actions. PFR File, Tab 1 at 5.
¶22 If a performance-based removal action under chapter 43 is supported by
substantial evidence, the Board will sustain the action unless the appellant shows
the following by a preponderance of the evidence: (1) the agency committed
harmful procedural error in reaching its decision; (2) the decision was based on a
prohibited personnel practice; or (3) the decision was not in accordance with
law. 10 5 U.S.C. §§ 2302(b), 7701(c); Lee, 115 M.S.P.R. 533, ¶ 6; 5 C.F.R.
§ 1201.56(b)(2)(i)(C). The Age Discrimination in Employment Act states that
“personnel actions . . . shall be made free from any discrimination based on age.”
9
The appellant does not discernably challenge the administrative judge’s conclusion
that he failed to prove his claim of discrimination on the basis of his race. ID at 9.
10
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
29 U.S.C. § 633a(a). Similarly, Title VII requires that such actions “shall be
made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). Thus, an appellant may prove a claim of
discrimination by showing that such discrimination “play[ed] any part” in the way
a decision was made. Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020); Pridgen
v. Office of Management & Budget, 2022 MSPB 31, ¶ 21. A finding that
prohibited discrimination played “any part” in the contested action is the same as
a finding of “motivating factor.” Pridgen, 2022 MSPB 31, ¶ 21. Although an
appellant who proves motivating factor and nothing more may be entitled to
injunctive or other forward-looking relief, to obtain the full measure of relief
available under the statute, including status quo ante relief, compensatory
damages, or other forms of relief related to the end result of an employment
decision, the appellant must show that discrimination was a but -for cause of the
employment outcome. Id., ¶ 22. One may prove discrimination under these
different standards of proof by various methods, including comparator evidence.
Id., ¶¶ 23-24.
¶23 We find that the appellant’s speculative allegations do not support a finding
that his age and/or national origin were motivating factors in his removal. ID
at 9; see Lee, 115 M.S.P.R. 533, ¶ 43 (finding the appellant failed to prove that
his removal for unacceptable performance constituted national origin
discrimination based on a remark of his second-level supervisor and his vague
testimony that five predecessors in his position, who were of a different national
origin, were not required to perform the same types of assignments he was
required to perform). Accordingly, we agree that the appellant has not proven his
discrimination claims. 11
11
The appellant asserts that the group director and the deciding official did not judge
his case independently. PFR File, Tab 1 at 5. To the extent that he is arguing that the
agency violated his right to due process because the deciding official did not properly
consider his case, we disagree. Fundamental due process requires that the tenured
public employee have “oral or written notice of the charges against him, an explanation
Remand is required in light of Santos.
¶24 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 performance evaluation period 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 evidence that the appellant’s performance during the appraisal
period prior to the performance evaluation period was unacceptable in one or
more critical elements. See Lee v. Department of Veterans Affairs, 2022 MSPB
11, ¶ 15. 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 showing that it orally warned the appellant
of inadequacies with his performance prior to the issuance of the written warning
of unacceptable performance that triggered the evaluation period, IAF, Tab 5
at 69-74, the parties nonetheless did not have 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 removal.
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
of the employer’s evidence, and an opportunity to present his side of the story.”
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Here, the
agency proposed the appellant’s removal, provided him wit h detailed information
supporting the proposal, and allowed him the opportunity to respond before imposing
the removal. IAF, Tab 4 at 47-50, 52-109, Tab 5 at 5-13. The deciding official cited
the appellant’s oral and written responses specifically in the decision. IAF, Tab 4
at 47-48. Thus, we find that the agency provided him the proper process before
imposing his removal. See Lee v. Department of Labor, 110 M.S.P.R. 355, ¶ 9 (2008)
(finding that the agency provided the appellant with due process when it gave her notice
of the reasons underlying the charge of unacceptable performance under 5 U.S.C.
chapter 43 and an opportunity to respond to those reasons).
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos).
¶25 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s
performance prior to the evaluation period 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 o f the
appellant’s affirmative defenses, 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 a nd his
legal reasoning, as well as the authorities on which that reasoning rests ).
ORDER
¶26 For the reasons discussed above, we grant the appellant’s petition for
review, affirm the initial decision in part as modified to (1) find that the agency
communicated its performance standards to the appellant, and (2) clarify the legal
standard applicable to the appellant’s discrimination-based affirmative defenses.
We vacate the initial decision in part 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.