                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KONSTANTINA TATSIS,                             DOCKET NUMBER
                  Appellant,                         CB-7121-16-0003-V-1

                  v.

     DEPARTMENT OF HOUSING AND                       DATE: June 16, 2016
       URBAN DEVELOPMENT,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Rushab Sanghvi, Washington, D.C., for the appellant.

           Lawrence E. McDermott, Esquire, and Patricia McGarvey Knebels,
             Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER

¶1         The appellant has filed a petition for review of an arbitration decision,
     which affirmed her removal for unacceptable performance under 5 U.S.C.
     chapter 43 and denied her affirmative defense of discrimination based on a failure
     to accommodate. For the reasons discussed below, we GRANT the request 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     review under 5 U.S.C. § 7121(d), VACATE the arbitration decision, REVERSE
     the arbitrator’s evidentiary ruling regarding the admissibility of emails relating to
     the preparation of the appellant’s notice of proposed removal, and FORWARD
     the matter to the Northeastern Regional Office for further adjudication in
     accordance with this Order.

                                      BACKGROUND
¶2         The agency removed the appellant from her position as an Equal
     Opportunity Specialist, effective October 1, 2014, for failure to demonstrate
     acceptable performance in a critical element of her position during a 90‑day
     performance improvement plan (PIP) period. 2 Request for Review (RFR) File,
     Tab 6 at 491, Tab 7 at 75, 77. The appellant filed a grievance challenging her
     removal, alleging, among other things, that the agency failed to provide her with
     a reasonable accommodation for an alleged disability related to a pregnancy.
     RFR File, Tab 6 at 7, 52, 55, 77‑82.
¶3         Following a hearing, the arbitrator denied the appellant’s grievance and
     affirmed her removal. Id. at 22‑33. He found that the agency met its burden of
     proof in a performance-based action under 5 U.S.C. chapter 43 and that the
     appellant failed to establish that the agency violated the applicable collective
     bargaining agreement. Id. at 29‑33. The arbitrator denied the appellant’s claim
     of discrimination, finding that, although the appellant suffered from medical
     issues that may have affected her employment, she failed to establish that she had
     requested a reasonable accommodation. Id. at 28‑29.
¶4         The appellant has filed a request for review of the arbitration decision, in
     which she challenges the arbitrator’s finding that she failed to request a
     reasonable accommodation. Id. at 15‑16. She also challenges the arbitrator’s


     2
       The agency referred to the PIP as an “Opportunity to Improve Performance.” Request
     for Review File, Tab 6 at 491.
                                                                                       3

     rulings regarding the admissibility of certain evidence, id. at 8‑15, and his
     finding that the agency afforded her a reasonable opportunity to improve her
     performance, id. at 17‑18. The agency has opposed the appellant’s request for
     review. RFR File, Tab 10.

                        DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant’s motion to proceed anonymously is denied.
¶5            On review, the appellant filed a motion requesting that our ruling in this
     matter be prepared in a manner that avoids disclosure of her name. 3 RFR File,
     Tab 5. A party seeking anonymity must overcome the presumption that parties’
     identities are public information.      Pinegar v. Federal Election Commission,
     105 M.S.P.R. 677, ¶ 11 (2007).       Anonymity is granted to litigants before the
     Board only in unusual circumstances, and the determination whether to grant
     anonymity depends on the particular facts of each case. Id. A litigant seeking
     anonymity before the Board must present evidence establishing that harm is
     likely, not merely possible, if her name is disclosed. Id., ¶¶ 11, 18.
¶6            Here, the appellant asserts that anonymity is necessary because her medical
     condition is at issue in her request for review. RFR File, Tab 5 at 4. However,
     she has failed to identify any specific harm that would result if her name were
     disclosed, or otherwise distinguish her situation from the numerous Board
     decisions in which appellants’ medical conditions are discussed. Id. While it is
     understandable that the appellant wishes to preserve her privacy, she has failed to
     rebut the presumption that the parties’ identities are public information in Board
     cases.     See Pinegar, 105 M.S.P.R. 677, ¶¶ 11, 19.     Therefore, we DENY the
     appellant’s motion requesting anonymity.




     3
       The appellant’s motion was captioned as “Motion to Sanitize Publication of
     Appellant’s Name.” RFR File, Tab 5 at 4.
                                                                                            4

     The Board has jurisdiction over the appellant’s request for review of the
     arbitration decision.
¶7           The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
     § 7121(d) when: (1) the subject matter of the grievance is one over which the
     Board has jurisdiction; (2) the appellant either (i) raised a claim of discrimination
     under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying
     action or (ii) raises a claim of discrimination in connection with the underlying
     action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such
     allegations could not be raised in the negotiated grievance procedure; and (3) a
     final    decision   has   been   issued.      Jones    v.   Department     of   Energy,
     120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R.
     § 1201.155(a)(1),(c).
¶8           In the instant case, each of the necessary conditions has been met. First, the
     appellant’s grievance concerns her removal for unacceptable performance under
     5 U.S.C. chapter 43, a subject matter over which the Board has jurisdiction. See
     5 U.S.C. § 4303(e); Galloway v. Social Security Administration, 111 M.S.P.R. 78,
     ¶ 11 (2009).     Second, the appellant alleged in her grievance that the agency’s
     action was due to discrimination based on a failure to accommodate. 4 RFR File,
     Tab 6 at 77‑82. Finally, the arbitrator has issued a final decision. Id. at 22-33.
     Consequently, we find that the Board has jurisdiction to review the arbitration
     decision.
     The standard of review of an arbitration decision
¶9           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. Sadiq v. Department of Veterans Affairs,

     4
       A section heading in the appellant’s request for review erroneously indicates that she
     raised an affirmative defense of retaliation for equal employment opportunity (EEO)
     activity. RFR File, Tab 6 at 7. The record on review does not indicate that the
     appellant raised a claim of retaliation for EEO activity before the arbitrator. RFR File,
     Tabs 6‑7.
                                                                                          5

      119 M.S.P.R. 450, ¶ 5 (2013). The Board will modify or set aside such an award
      only when the arbitrator has erred as 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.
      Id. Nevertheless, the Board can defer to the arbitrator’s findings and conclusions
      only if the arbitrator makes specific findings on the issues in question.          Id.
      Further, the Board may make its own findings when the arbitrator failed to cite
      any legal standard or employ any analytical framework for his evaluation of the
      evidence. Id.
      The arbitrator erred in analyzing the appellant’s affirmative defense of
      discrimination.
¶10        We first address the appellant’s affirmative defense of discrimination,
      because the arbitrator’s errors in analyzing this affirmative defense form the
      primary basis for granting the appellant’s request for review.
¶11        The appellant alleged that she orally requested a reasonable accommodation
      from her former supervisor, V.C., in January 2013, more than a year and a half
      before she was placed on the PIP. RFR File, Tab 6 at 80, 491, Tab 7 at 6‑7.
      During the arbitration hearing, the appellant apparently testified that, during a
      telephone conversation with V.C. (who was deceased at the time of the hearing),
      she informed V.C. of her medical issues. 5       RFR File, Tab 6 at 25, 28.       The
      arbitrator found that the appellant’s        testimony regarding the telephone
      conversation, “with no further follow up,” was insufficient proof of a request for
      reasonable accommodation. Id. at 29.
      5
        Although the arbitration decision reflects the general nature of the appellant’s
      testimony regarding the alleged conversation with V.C., her exact testimony is
      unavailable because the arbitration hearing was not recorded or transcribed. RFR File,
      Tab 6 at 5 n.3.
                                                                                             6

¶12          Although the arbitrator did not clearly articulate the factual or legal basis
      for this finding, it appears that he summarily discounted the appellant’s
      testimony, which was seemingly uncontradicted, primarily on the basis that there
      was no documentary evidence to corroborate the testimony. Id. This constituted
      error. 6   See generally Vanieken-Ryals v. Office of Personnel Management,
      508 F.3d 1034, 1041 (Fed. Cir. 2007) (finding that subjective evidence submitted
      by an applicant for disability retirement, such as testimony or written statements,
      may be entitled to great weight on the matter of disability, especially where such
      evidence is uncontradicted in the record); Heiter v. Office of Personnel
      Management, 107 M.S.P.R. 514, ¶ 7 (2007) (finding medical opinion testimony
      probative where, among other things, such testimony was unrefuted by
      countervailing    testimony);    Bradley    v.   Department     of   Veterans   Affairs,
      78 M.S.P.R. 296, 300‑01 (1998) (finding no reasonable basis to discredit an
      appellant’s uncontradicted testimony regarding her interactions with a patient).
¶13          We further find that the arbitrator’s analysis regarding the appellant’s
      discrimination claim was cursory and that he failed to consider all potentially
      relevant issues. See Hollingsworth v. Department of Commerce, 115 M.S.P.R.
      636, ¶ 8 (2011) (finding that an arbitrator’s decision is not entitled to deference
      where the arbitrator decides an issue without making specific findings, citing the
      correct legal standard, or employing the proper analytical framework).            As an
      initial matter, the arbitrator failed to cite any legal standard or set forth any
      analytical framework for adjudicating the appellant’s discrimination claim. See

      6
        To the extent that the arbitrator found that the appellant’s alleged statements to V.C.
      were insufficient to establish that she requested a reasonable accommodation because
      the request was not formal or in writing, this also would constitute error. See White v.
      Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 15 n.6 (2013) (finding that a
      request for reasonable accommodation need not be in writing, although an employee
      generally must inform the employer that an accommodation is needed); Paris v.
      Department of the Treasury, 104 M.S.P.R. 331, ¶ 17 (2006) (finding that an employee
      only has a general responsibility to inform his employer that he needs accommodation
      for a medical condition).
                                                                                       7

      Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 15 (2014) (vacating an
      arbitrator’s findings where he failed to set forth any analytical framework for his
      findings regarding the appellant’s claims of discrimination and retaliation for
      union activity); Sadiq, 119 M.S.P.R. 450, ¶ 12 (vacating an arbitrator’s findings
      regarding an appellant’s discrimination claims where, among other things, the
      arbitrator did not set forth any analytical framework for adjudicating the claims).
      However, it appears that the arbitrator construed the appellant’s claim that the
      agency failed to provide her with a reasonable accommodation for her medical
      conditions solely as a claim of disability discrimination.    RFR File, Tab 6 at
      28-29.
¶14        The arbitrator also should have considered whether the appellant’s
      allegations raised a claim of discrimination based on sex under the Pregnancy
      Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at
      42 U.S.C. § 2000e(k). The PDA amended title VII of the Civil Rights Act by
      expanding the definition of sex discrimination to include discrimination “because
      of or on the basis of pregnancy, childbirth, or related medical conditions.”
      42 U.S.C. § 2000e(k); see Thome v. Department of Homeland Security,
      122 M.S.P.R. 315, ¶ 26 (2015). The PDA further specifies that women affected
      by pregnancy, childbirth, or related medical conditions must be treated the same
      for employment-related purposes as other persons not so affected “but similar in
      their ability or inability to work.” 42 U.S.C. § 2000e(k). The arbitrator should
      have requested that the appellant clarify whether she was alleging that the agency
      discriminated against her based on a pregnancy‑related medical condition, and if
      so, considered the applicability, if any, of Young v. United Parcel Service, Inc.,
      135 S. Ct. 1338, 1353‑55 (2015), in which the United States Supreme Court
      recently clarified the analytical framework for proving a claim of disparate
      treatment discrimination under the PDA.
                                                                                         8

¶15         Moreover, as the appellant correctly notes in her request for review, in
      addition to the alleged oral request for a reasonable accommodation in
      January 2013, she also alleged that she made a second request for a reasonable
      accommodation in one of her September 2014 responses to the notice of proposed
      removal. RFR File, Tab 6 at 15‑16, 80‑81, Tab 7 at 11. Although the arbitrator
      mentioned this allegation in the arbitration decision, RFR File, Tab 6 at 24, 26, he
      failed to make any findings or conclusions regarding this claim; id. at 28‑29.
      Accordingly, the Board has no basis upon which to defer to the arbitrator on this
      issue. See Sadiq, 119 M.S.P.R. 450, ¶ 12 (finding that the Board had no basis
      upon which to defer to an arbitrator where the arbitrator failed to make findings
      on certain claims).
¶16         For these reasons, we vacate the arbitrator’s finding that the appellant failed
      to prove her affirmative defense of discrimination, and, pursuant to the Board’s
      authority in 5 C.F.R. § 1201.155(e), we forward the matter to the Board’s
      Northeastern Regional Office for assignment to an administrative judge to make
      recommended findings on the appellant’s discrimination claim under the
      appropriate legal standards. See Brookens, 120 M.S.P.R. 678, ¶¶ 15‑17 (vacating
      an arbitrator’s findings that an agency did not retaliate against an appellant due to
      his union activities and discriminate against him based on age and race, and
      forwarding the case to a regional office for further adjudication).
¶17         An appellant is typically entitled to notice of the applicable burdens and
      elements of proof and an opportunity to submit evidence and argument under the
      proper standard.      See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶¶ 10,
      13-14 (2010). The administrative judge shall provide the appellant with notice of
      what she needs to do to establish her discrimination claim.           In advising the
      appellant on this issue, the administrative judge shall have the appellant clarify
      whether she is raising a sex discrimination claim, a disability discrimination
      claim, or both. When providing such notice, the administrative judge may wish to
                                                                                        9

      review the Board’s analysis in Thome, 122 M.S.P.R. 315, ¶¶ 23‑30, to see how
      claims of discrimination based on sex and disability discrimination may become
      blurred in claims under the PDA.
¶18        Next, the administrative judge shall allow the parties to further develop the
      record on the appellant’s discrimination claim and hold a hearing if the appellant
      so requests.   The administrative judge shall consider the evidence and make
      credibility determinations regarding the appellant’s testimony pertaining to the
      alleged January 2013 telephone conversation with V.C., in which she claimed that
      she requested a reasonable accommodation.        See Hillen v. Department of the
      Army, 35 M.S.P.R. 453, 458 (1987) (setting forth the factors that are generally
      probative in credibility determinations). In the event that other witnesses are able
      to offer testimony on this issue, the administrative judge also shall consider their
      testimony and make credibility determinations as to those witnesses.
¶19        In analyzing the appellant’s claim regarding her reasonable accommodation
      request, the administrative judge shall discuss what, if any, effect the PDA has on
      her claim. The administrative judge also should discuss what, if any, effect the
      Supreme Court’s decision in Young, 135 S. Ct. 1338, has on the appellant’s
      discrimination claim.   See Thome, 122 M.S.P.R. 315, ¶¶ 26‑29 (remanding an
      appeal to the regional office to consider the appellant’s claims in light of the
      Supreme Court’s decision in Young).
¶20        Finally, the administrative judge shall further develop the record and make
      factual findings regarding the appellant’s claim that she requested a reasonable
      accommodation in her September 2014 response to the notice of proposed
      removal, applying the appropriate legal standards.
      The arbitrator misapplied the law in his evidentiary ruling regarding the
      admissibility of emails relating to the preparation of the appellant’s notice of
      proposed removal.
¶21        In her request for review, the appellant argues that the arbitrator erred in an
      evidentiary ruling regarding three emails between her supervisor and a Labor and
                                                                                           10

      Employee Relations Specialist, which the agency provided in response to an
      information    request   from    the   appellant’s   union    pursuant    to   5 U.S.C.
      § 7114(b)(4). 7 RFR File, Tab 6 at 8‑15, Tab 7 at 153, 162‑204. In pertinent part,
      the emails and associated attachments reflect that the agency began the process of
      preparing the appellant’s notice of proposed removal approximately 3 weeks prior
      to the completion of the 90‑day PIP period. RFR File, Tab 7 at 162-204. The
      arbitrator found that the emails were exempt from disclosure under the Freedom
      of Information Act’s (FOIA) deliberative process privilege, 5 U.S.C. § 552(b)(5),
      and further found that the agency did not waive the privilege by failing to raise it
      until after the appellant used the documents to cross‑examine a witness at
      hearing. 8 RFR File, Tab 6 at 38‑40. For these reasons, the arbitrator ruled that
      the emails were inadmissible in the arbitration proceedings. Id. at 40.
¶22         We agree with the appellant that the arbitrator erred in finding that the
      emails were protected under FOIA’s deliberative process privilege, because the
      documents were not produced in response to a FOIA request. 9 RFR File, Tab 6

      7
       Pursuant to 5 U.S.C. § 7114(b)(4)(B), an agency must furnish information to a union,
      on request and to the extent not prohibited by law, if the information is: (1) normally
      maintained by the agency in the regular course of business; (2) reasonably available and
      necessary for full and proper discussion, understanding, and negotiation of subjects
      within the scope of collective bargaining; and (3) does not constitute guidance, advice,
      counsel, or training provided for management officials or supervisors, relating to
      collective bargaining.
      8
        The agency did not attempt to invoke the common law, as opposed to FOIA,
      deliberative process privilege. RFR File, Tab 6 at 47‑51. Unlike the FOIA privilege,
      the common law deliberative process privilege can be asserted only by the head of the
      agency, or an official to whom such authority has been delegated by the head of the
      agency, and must be asserted in the form of a declaration or affidavit. See Marriott
      International Resorts, L.P. v. United States, 437 F.3d 1302, 1308 (Fed. Cir. 2006)
      (holding that assertion of the common law deliberative process privilege can be
      delegated); see also CACI Field Services, Inc. v. United States, 12 Cl. Ct. 680, 686 n.7
      (Cl. Ct. 1987) (distinguishing the procedural requirements for invoking the FOIA and
      common law deliberative process privileges).
      9
        5 U.S.C. § 7114(b)(4) provides that the agency is required to furnish data “to the
      extent not prohibited by law.” However, FOIA exemptions, such as the FOIA
                                                                                          11

      at 13‑15.    Instead, the agency provided the documents in response to an
      information request pursuant to 5 U.S.C. § 7114(b)(4), see RFR File, Tab 7
      at 153, and the union’s right to information under that statutory provision is not
      controlled by FOIA.      See Bureau of Alcohol, Tobacco & Firearms, National
      Office & Western Region and National Treasury Employees Union, 8 F.L.R.A.
      547, 556 (1982) (explaining that a union’s right to data under 5 U.S.C.
      § 7114(b)(4) is not controlled by FOIA); see also National Labor Relations Board
      v. Federal Labor Relations Authority, 952 F.2d 523, 529 (D.C. Cir. 1992)
      (finding that 5 U.S.C. § 7114(b)(4) does not “incorporate a FOIA-like exemption
      for any predecisional, deliberative document”).
¶23         Having determined that the emails were not exempt from disclosure under
      FOIA’s deliberative process privilege in the first instance, we need not address
      the appellant’s argument that the administrative judge erred in finding that the
      agency did not waive this privilege. RFR File, Tab 6 at 10‑13. Similarly, we
      need not resolve the issue of whether the agency was obligated to produce the
      emails pursuant to the standards in 5 U.S.C. § 7114(b)(4). RFR File, Tab 6 at 39.
      The agency did produce the emails, and, although we disagree with the
      appellant’s assertion that they establish that her removal was “deficient,” id. at
      13, they are arguably relevant to her claims of discrimination and the issue of
      whether the agency met its burden of proof in this performance‑based action
      under 5 U.S.C. chapter 43.
¶24         Accordingly, we reverse the arbitrator’s findings that the emails are
      inadmissible. When this matter is forwarded to the Northeastern Regional Office,
      the administrative judge shall admit the three emails at issue into evidence. The

      deliberative process privilege, are exemptions from mandatory disclosure in response to
      FOIA requests only; they do not prohibit agency disclosure of data or information. See
      Chrysler Corporation v. Brown, 441 U.S. 281, 292 (1979) (finding that the FOIA
      exemptions are not a mandatory bar to an agency’s disclosure of information).
      Accordingly, FOIA does not prohibit the agency from providing the emails in response
      to the union’s information request pursuant to 5 U.S.C. § 7114(b)(4).
                                                                                       12

      administrative judge also shall afford the parties an opportunity to further develop
      the record regarding the emails, including the opportunity to present testimony
      and cross examine witnesses regarding the emails, if the appellant requests a
      hearing. The administrative judge shall consider the emails, and any evidence
      submitted regarding the emails, in making the recommended findings described in
      this Order.
      We vacate the arbitrator’s finding that the agency proved the charge of
      unacceptable performance.
¶25         Finally, we turn to the issue of whether the arbitrator’s finding that the
      agency proved the charge of unacceptable performance under 5 U.S.C. chapter 43
      can be sustained at this time. For the reasons discussed below, we find that it
      cannot.
¶26         To prevail in an appeal of a performance-based removal under chapter 43,
      the agency must establish by substantial evidence that:         (1) the Office of
      Personnel Management approved its performance appraisal system and any
      significant changes thereto; (2) the agency communicated to the appellant the
      performance standards and critical elements of her position; (3) the appellant’s
      performance standards are valid under 5 U.S.C. § 4302(b)(1); (4) the agency
      warned the appellant of the inadequacies of her performance during the appraisal
      period and gave her 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 she was provided an opportunity to
      demonstrate acceptable performance. Lee v. Environmental Protection Agency,
      115 M.S.P.R. 533, ¶ 5 (2010).
¶27         Of these elements, the appellant’s request for review challenges only the
      arbitrator’s determination that the agency provided her a reasonable opportunity
      to demonstrate acceptable performance. RFR File, Tab 6 at 17‑18. The arbitrator
      found that agency managers testified regarding meetings with the appellant during
      her 90‑day PIP where she was informed what was necessary to demonstrate
                                                                                        13

      acceptable performance and that emails in the record confirmed that these
      meetings occurred. Id. at 31. He further found that the appellant had more than
      6 years of experience in her position, which was more than sufficient to enable
      her to perform her regular duties as needed. Id.
¶28        On review, the appellant contends that the arbitrator failed to consider
      unspecified arguments raised in her post-hearing brief and also generally asserts
      that the arbitrator “fail[ed] to provide any legal analysis.”     Id. at 18.   In the
      absence of any arguments regarding specific errors by the arbitrator, we find that
      the appellant’s assertions amount to mere disagreement with the arbitrator’s
      explained factual findings and conclusion, and do not demonstrate legal error.
      See Cirella v. Department of the Treasury, 108 M.S.P.R. 474, ¶ 16 (finding that
      an appellant’s vague allegations, unsupported by specific references to the record,
      constituted   mere    disagreement    with    an   arbitrator’s   findings),   aff’d,
      296 F. App’x 63 (Fed. Cir. 2008); Cook v. Equal Employment Opportunity
      Commission, 50 M.S.P.R. 660, 661-62 (1991) (finding that an appellant’s bare
      assertions of error by an arbitrator, unsupported by references to the record or
      argument, constituted mere disagreement with the arbitrator and did not justify
      modifying or setting aside an arbitration decision).
¶29        Although the appellant’s arguments on review do not form a basis for
      reversing the arbitrator’s finding that the agency proved the charge of
      unacceptable performance, we nevertheless find that this finding cannot be
      sustained at this time in light of the fact that the arbitrator’s evidentiary ruling
      has been reversed and his finding regarding the appellant’s affirmative defense
      has been vacated. The appellant’s discrimination claim, if proven, relates to the
      issue of whether the agency provided her with a reasonable opportunity to
      demonstrate acceptable performance. Specifically, if the appellant requested a
      reasonable accommodation in January 2013, and the agency subsequently placed
      her on a PIP in April 2014, RFR File, Tab 6 at 368, without the benefit of a
      reasonable accommodation, the agency may not have provided her with a
                                                                                         14

      reasonable opportunity to demonstrate successful performance. In addition, the
      three emails that the arbitrator erroneously ruled were inadmissible, which
      reflected that the agency began preparing the appellant’s notice of proposed
      removal prior to the completion of the 90‑day PIP period, also may potentially be
      relevant to the issue of whether the agency provided her with a reasonable
      opportunity to demonstrate successful performance.
¶30        Accordingly, because we are reversing the arbitrator’s evidentiary ruling
      and forwarding the appellant’s affirmative defense of discrimination to the
      Northeastern Regional Office for further adjudication, we vacate the arbitrator’s
      finding that the agency proved the charge of unacceptable performance.             See
      Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶¶ 1, 8 (2010) (vacating
      an administrative judge’s findings that an agency proved the charge, nexus, and
      penalty where the appeal was remanded for further adjudication of the appellant’s
      affirmative defense of discrimination).     When the case is forwarded to the
      Northeastern Regional Office, the administrative judge shall make recommended
      findings regarding whether the agency proved the charge of unacceptable
      performance.    If the appellant fails to prove her affirmative defense of
      discrimination, then the administrative judge may adopt the arbitrator’s finding
      that the agency proved the charge of unacceptable performance, if he or she finds
      that such a conclusion is supported by the record as supplemented by the three
      emails that the arbitrator erroneously ruled were inadmissible.

                                           ORDER
¶31        For the reasons set forth above, we forward this matter to the Northeastern
      Regional Office for further adjudication. The administrative judge shall conduct
      further proceeds as necessary, consistent with this Order, and make recommended
      findings to the Board regarding the appellant’s affirmative defense of
      discrimination and the issue of whether the agency proved the charge of
      unacceptable   performance.      After    the   administrative    judge   issues   the
                                                                            15

recommendation, the case will be forwarded back to the Board. The parties may
file exceptions to the administrative judge’s recommendation with the Clerk of
the Board within 20 days of the date of the recommendation. The parties may
respond to any 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:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
