UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY CLAYTON, DOCKET NUMBER
Appellant, CB-7121-18-0005-V-1
v.
DEPARTMENT OF VETERANS DATE: December 21, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.
Janean B. Dunn, Esquire, Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The appellant has filed a request for review of an arbitration decision that
sustained the agency’s decision to remove him for unacceptable performance.
For the reasons set forth below, we GRANT the request for review under 5 U.S.C.
§ 7121(d) and FORWARD the matter to the Washington Regional Office for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
further adjudication in accordance 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 a Vocational Rehabilitation Counselor for the agency.
Request for Review (RFR) File, Tab 1 at 117. The principle duties of Vocational
Rehabilitation Counselor consist of counseling (55%) and case management
(45%). Id. at 43-45. The counseling duties involve counseling disabled veterans
to assist them in reaching their educational, occupational, and rehabilitati on
goals, and the case management duties involve maintaining case records and
facilitating the veterans’ interaction with the agency and various third parties. Id.
The appellant’s performance was rated on four critical elements —timeliness,
production, quality of work, and customer service. 2 Id. at 20.
¶3 The agency placed the appellant on a 3-month performance improvement
plan (PIP) from October through December 2016. Id. After the close of the PIP,
the agency determined that the appellant failed to demon strate acceptable
performance in the elements of production, quality of work, and customer service.
Id. Effective April 23, 2017, the agency removed the appellant for failure to meet
performance expectations. 3 Id. The appellant grieved the removal, raising a
claim of disability discrimination under a reasonable accommodation theory, and
the grievance went to arbitration. On October 21, 2017, the arbitrator issued a
2
There are several key documents missing from the record, including the performance
improvement plan notice, the appellant’s performance standards, the notice of proposed
removal, and the removal decision. Cf. 5 C.F.R. § 1201.155(d)(4) (stating that a
request for arbitration review must contain copies of the agency’s decision and other
relevant documents). We must therefore rely on the arbitrator’s characterization of
these documents in reaching our decision.
3
The arbitration decision inaccurately states that the appellant was removed on
April 23, 2016. RFR File, Tab 1 at 20.
3
decision denying the disability discrimination claim and upholding the removal.
Id. at 17-37.
¶4 The appellant has requested review of the arbitrator’s decision, arguing that
the performance standards at issue are unreasonable and therefore invalid and that
the agency’s failure to provide him a reasonable accommodation deprived him of
a reasonable opportunity to demonstrate acceptable performance during the PIP.
Id. at 4-14. The agency has filed a response. RFR File, Tab 6.
ANALYSIS
¶5 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has
been issued. Sadiq v. Department of Veterans Affairs, 119 M.S.P.R. 450, ¶ 4
(2013); 5 C.F.R. § 1201.155(a). Each of these conditions has been satisfied in
this case. Nevertheless, the standard of the Board’s review of an arbitrator’s
award is limited; such awards are entitled to a greater degree of deference than
initial decisions issued by the Board’s administrative judges. Vena v. Department
of Labor, 111 M.S.P.R. 165, ¶ 5 (2009). The Board will modify or set aside an
arbitrator’s award only when the arbitrator has erred as a matter of law in
interpreting a civil service law, rule, or regulation. Id. Even if the Board
disagrees with an arbitrator’s decision, absent legal error, the Board cannot
substitute its conclusions for those of the arbitrator. Id. Thus, the arbitrator’s
factual determinations are entitled to deference unless the arbitrator erred in his
legal analysis, for example, by misallocating the burdens of proof or employing
the wrong analytical framework. Hollingsworth v. Department of Commerce,
115 M.S.P.R. 636, ¶ 7 (2011).
4
The appellant’s arguments do not provide a basis to disturb the arbitration
decision.
¶6 At the time the arbitration decision was issued, the Board’s case law stated
that, in a performance-based removal under chapter 43, the agency must establish
the following by substantial evidence: (1) the Office of Personnel Management
approved its performance appraisal system and any si gnificant 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(c)(1) 4; (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 arbitrator correctly applied this correct legal standard and found that
the agency proved each element of its case by substantial evidence. RFR File,
Tab 1 at 26-32, 36-37. In particular, the arbitrator found that the appellant’s
performance remained unacceptable under the quality of work and customer
service standards. Id. at 26, 29-32.
¶7 On review, the appellant argues that the arbitrator erred in finding that the
performance standards were valid. Id. at 11-14. Specifically, he argues that the
performance standards were not realistic, reasonable, and attainable, as evidenced
by the fact that the large majority of his colleagues failed to meet the standards
and the agency amended the standards shortly after his removal . Id. at 12-14; see
Johnson v. Department of the Army, 44 M.S.P.R. 464, 466-67 (1990) (explaining
that, to show that a performance standard is valid, an agency must demonstrate
4
The criteria set forth in 5 U.S.C. § 4302(c)(1) formerly appeared at 5 U.S.C.
§ 4302(b)(1) prior to the enactment of the National Defense Authorization Act for
Fiscal Year 2018, Pub. L. No. 115-91, Div. A, tit. X, § 1097(d)(1), 131 Stat. 1283, 1619
(2017), which was signed into law on December 12, 2017.
5
that the standard is reasonable, realistic, and attainable). As an initial matter, the
Board has held that an appellant generally may not seek to set aside or modify an
arbitration decision on a ground not raised before the arbitrator . Jones v.
Department of Energy, 120 M.S.P.R. 480, ¶ 3 (2013), aff’d, 589 F. App’x 972
(Fed. Cir. 2014). In this case, we find no indication in the record that t he
appellant disputed the reasonableness of his performance standards prior to his
request for arbitration review. Furthermore, even assuming that the appellant
disputed the reasonableness of his performance standards before the arbitrator,
the appellant is essentially arguing that the arbitrator ignored certain evidence in
reaching his conclusion. RFR File, Tab 1 at 12-14. However, the arbitrator’s
failure to mention all of the evidence of record does not mean that he did not
consider it in reaching his decision, Gustave-Schmidt v. Department of Labor,
87 M.S.P.R. 667, ¶ 10 (2001), and this omission does not mean that his decision
is contrary to civil service law, rule, or regulation, Benson v. Department of the
Navy, 65 M.S.P.R. 548, 554 (1994). The Board has found that an argument that
an arbitrator ignored certain evidence relates only to the arbitrator’s factual
findings and conclusions and does not demonstrate legal error. Moore v.
Department of Commerce, 55 M.S.P.R. 451, 458 (1992). Thus, we find the
appellant’s arguments regarding the agency’s case in chief unpersuasive and we
discern no basis to disturb the arbitrator’s conclusion that the agency satisfied the
above-articulated legal standard by substantial evidence.
¶8 The appellant also argues that the agency’s failure to provide him with a
reasonable accommodation during the PIP deprived him of a reasonable
opportunity to demonstrate acceptable performance. RFR File, Tab 1 at 4-11. It
is not entirely clear to us whether the appellant is directing his argument at the
agency’s case in chief, his own affirmative defense, or both. In any event, we
find that the appellant’s arguments are insufficient to show legal error in the
arbitrator’s decision. The appellant renders an account of the facts underlying his
disability discrimination claim, asserts that the agency failed to offer him a
6
reasonable accommodation until after the PIP was over, and argues that the
failure to accommodate deprived him of a reasonable opportunity to demonstrate
acceptable performance. Id. at 7-11. He argues that the arbitrator “err[ed] in
assessing whether any of the requested accommodations at any point were
unreasonable and by ignoring the accommodations that he did find reasonable.”
Id. at 9. We find, however, that the appellant’s arguments pertain to the
arbitrator’s factual determinations and not to any alleged error in the legal
analysis such as misallocating the burdens of proof or using the wrong analytical
framework. See Shestak v. Social Security Administration, 84 M.S.P.R. 307, ¶ 6
(1999). In his decision, the arbitrator discussed the reasonable accommodation
issue at length and found that the agency reacted appropriately to the appellant’s
requests for accommodation, including making some reasonable accommodations
available to him during the PIP. RFR File, Tab 1 at 27-29, 32-36. Although the
appellant disagrees with the arbitrator’s factual conclusions, we find that the
arbitrator employed the proper legal standard in reaching them. For these
reasons, we find that the appellant has not presented an adequate basis for the
Board to disturb the arbitrator’s decision.
We forward the matter for further adjudication in light of Santos.
¶9 Although the appellant has identified no basis for us to disturb the
arbitration decision, we nonetheless must forward this matter to an administrative
judge for further adjudication. To this end, during the pendency of request for
review in this case, the Federal Circuit found in Santos, 990 F.3d at 1360-61, that,
in addition to the five elements of the agency’s case set forth above, the agency
must also justify the institution of a PIP by proving by substantial evidence that
the appellant’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. Accordingly, we forward this matter to the regional office
to provide the parties an opportunity to present argument and additional evidence
7
regarding whether the appellant’s performance during the period leading up to the
PIP was unacceptable 5; if appropriate, the administrative judge assigned to the
matter may convene a hearing. See id., ¶¶ 16-17. Regardless of whether the
agency meets its additional burden, if the argument or evidence regarding the
appellant’s pre-PIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defense, the administrative judge should make
recommended findings regarding the same.
ORDER
¶10 For the reasons set forth above, we forward this matter to the Washington
Regional Office for further adjudication. The administrative judge assigned to
the matter shall conduct further proceedings as necessary, consistent with this
Order, and make recommended findings to the Board regarding (1) the issue of
whether the agency proved the charge of unacceptable performance under the
standard articulated in Santos, and (2) the appellant’s affirmative defense of
discrimination on the basis of failure to provide a reasonable accommodation .
After the administrative judge issues the recommended decision, the case will be
forwarded back to the Board. The parties may file exceptions to the
administrative judge’s recommended decision with the Clerk of the Board within
20 days of the date of the recommended decision. The parties may respond to any
5
We acknowledge that the arbitrator discussed shortcomings with the appellant’s
performance prior to the PIP period. E.g., RFR File, Tab 1 at 19-20, 35. Nonetheless,
in light of the now-modified legal standard, we find it appropriate to provide the parties
with the opportunity to present argument and additional evidence.
8
submission by the other party within 15 days of the date of such submission. The
Board will subsequently issue a final decision on the merits of the appellant’s
request for review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Jeffrey Clayton v. Department of Veterans Affairs
Combined Opinion