                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEBORAH M. CHRISAWN,                            DOCKET NUMBER
                  Appellant,                         DC-0752-14-0550-I-1

                  v.

     SOCIAL SECURITY                                 DATE: July 28, 2015
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Patrice Davis, Anderson, South Carolina, for the appellant.

           Jessica V. Johnson and Megan P. Cleary, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed its decision to demote the appellant for unacceptable performance under
     5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the agency’s
     petition for review, REVERSE the initial decision IN PART, and SUSTAIN the


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     agency’s demotion action. We AFFIRM the initial decision’s finding that the
     appellant failed to prove her affirmative defenses.

                                      BACKGROUND
¶2        The appellant was employed as a GS-11 Claims Representative until the
     agency demoted her to a GS-08 Service Representative for unacceptable
     performance in two of the four critical elements of her position. Initial Appeal
     File (IAF), Tab 6 at 51-76. The agency placed the appellant on a performance
     assistance plan (PAP) from December 3, 2012, to January 2, 2013, and on an
     opportunity to perform successfully (OPS) plan from January 28, 2013, to
     May 28, 2013. 2    IAF, Tab 8 at 58-63, 69-73.        After determining that the
     appellant’s performance remained unsatisfactory, the agency issued her a notice
     of proposed performance-based demotion on August 23, 2013, and then demoted
     her, effective March 2, 2014. IAF, Tab 6 at 51-76.
¶3        The appellant timely appealed her demotion to the Board and argued that
     the agency committed harmful procedural error in violating the terms of the
     applicable collective bargaining agreement by not setting specific goals for her to
     achieve and by not following proper procedures during the PAP and OPS periods.
     IAF, Tab 1 at 4.       She also raised the affirmative defenses of disability
     discrimination 3 and retaliation for prior equal employment opportunity activity.
     Id. After the appellant withdrew her request for a hearing, the administrative
     judge issued an initial decision based on the written record, reversing the
     demotion action. IAF, Tab 29, Initial Decision (ID); IAF, Tab 22 at 15. The
     administrative judge found, among other things, that the agency failed to establish


     2
       The agency’s performance management system involves first placing a poorly
     performing employee on a 30-day PAP and, if the employee’s performance does not
     improve, then placing the employee on an OPS plan for a period of 120 days. IAF,
     Tab 8 at 128-29.
     3
        The appellant, who was represented, also asserted, but withdrew, claims of
     discrimination based on her race and sex. IAF, Tab 1 at 4, Tab 23 at 7.
                                                                                           3

     that it afforded the appellant a reasonable opportunity to improve her
     performance and ordered the agency to cancel the demotion, restore the appellant
     to her Claims Representative position with back pay, and provide her interim
     relief, if either party filed a petition for review of the initial decision. ID at 5-15,
     25-26. The administrative judge further found that the appellant failed to prove
     her affirmative defenses. ID at 15-24.
¶4         The agency has filed a petition for review in which it asserts that the
     administrative judge erred in finding that the appellant was not afforded a
     reasonable opportunity to improve her performance. 4 Petition for Review (PFR)
     File, Tab 2. Specifically, the agency asserts that the administrative judge erred in
     relying exclusively on the PAP period and failed to consider any of the evidence
     regarding assistance the agency provided to the appellant during the subsequent
     OPS period. PFR File, Tab 2 at 20-26. The appellant has not challenged the
     administrative judge’s findings that she failed to prove her affirmative defenses
     and has not responded to the agency’s petition for review.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         In a performance-based action taken under chapter 43, an agency must
     establish by substantial evidence 5 that: (1) the Office of Personnel Management




     4
       With its petition for review, the agency submitted declarations made under penalty of
     perjury from two Human Resources Specialists, asserting that the agency attempted to
     comply with the interim relief order and restore the appellant to her Claims
     Representative position, but that the appellant filed for disability retirement on
     August 27, 2013, voluntarily retired effective May 2, 2014, and subsequently informed
     the agency that she was unsure if she was physically able to return to work because she
     would need clearance from her doctor. Petition for Review File, Tab 2 at 6-7, 31,
     33-34. The appellant has not raised any issues of noncompliance with the interim relief
     order and thus we need not discuss this issue further. See 5 C.F.R. § 1201.116.
     5
       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. § 1201.56(c)(1).
                                                                                             4

     (OPM) approved its performance appraisal system 6; (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 improve; and
     (5) the appellant’s performance remained unacceptable in at least one critical
     element. White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).
     The administrative judge found that the agency met its burden as to the first three
     criteria because the appellant did not dispute OPM’s approval of the agency’s
     performance appraisal system, did not dispute that the agency gave her notice of
     the standards applicable to her performance, and did not contend that the
     agency’s standards were impossible or unreasonable. ID at 3-5.
¶6         We discern no reason to disturb the administrative judge’s findings in these
     regards. 7   See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
     (finding no reason to disturb the administrative judge’s findings where she
     considered the evidence as a whole, drew appropriate references, and made
     reasoned conclusions); see also Broughton v. Department of Health & Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same). However, as set forth below, we
     find that the administrative judge erred in finding that the appellant was not
     afforded a reasonable opportunity to improve her performance. 8 We further find

     6
       The agency has the burden of proving that OPM has approved its performance
     appraisal system if the appellant specifically raises such a challenge. Sanders v. Social
     Security Administration, 114 M.S.P.R. 487, ¶ 11 n.2 (2010).
     7
       Because the appellant has not filed a cross petition for review challenging the
     administrative judge’s findings regarding her affirmative defenses and because we
     discern no basis to disturb the administrative judge’s findings, we will not discuss those
     matters further.
     8
       The factual record regarding the appellant’s purported poor performance and whether
     the agency afforded her a reasonable opportunity to improve is fully developed.
     Because the appellant withdrew her request for a hearing and a hearing was not held, we
     can address these matters now without remanding this appeal to the administrative
     judge to further develop the record and make factual findings after considering the
                                                                                         5

     that the agency established that the appellant’s performance in the critical
     elements of participation and achieves business results remained unacceptable
     during the OPS period.
     The agency afforded the appellant a reasonable opportunity to improve her
     performance during the OPS period.
¶7        OPM’s regulations governing performance-based actions taken pursuant to
     5 U.S.C. § 4303 state that “[a]s part of the employee’s opportunity to demonstrate
     acceptable performance, the agency shall offer assistance to the employee in
     improving unacceptable performance.” 5 C.F.R. § 432.104. Although there is no
     mechanical requirement regarding the form of this assistance, in determining
     whether an agency has afforded an employee a reasonable opportunity to
     demonstrate acceptable performance, relevant factors include the nature of the
     duties and responsibilities of the employee’s position, the performance
     deficiencies involved, and the amount of time which is sufficient to enable the
     employee to demonstrate acceptable performance.              Lee v. Environmental
     Protection Agency, 115 M.S.P.R. 533, ¶ 32 (2010); Gjersvold v. Department of
     the Treasury, 68 M.S.P.R. 331, 336 (1995).
¶8        The administrative judge found that the appellant was not afforded a
     reasonable opportunity to improve during the PAP because neither the appellant
     nor her mentor received a reduction in workload to permit adequate time for
     training. ID at 14-15. The administrative judge further found that, instead, the
     appellant’s workload during the PAP was increasing and, thus, her tasks of
     simultaneously training and eliminating a backlog of cases were impossible. ID
     at 15. While we agree with the administrative judge that the record supports a
     finding that the appellant was not afforded a reasonable opportunity to improve

     credibility of the witnesses during their hearing testimony. See Burton v. U.S. Postal
     Service, 112 M.S.P.R. 115, ¶ 8 (2009) (finding that remand to further develop the
     record and make demeanor-based credibility determinations was unnecessary where the
     appellant did not request a hearing).
                                                                                      6

      during the PAP from December 3, 2012, to January 2, 2013, the administrative
      judge failed to consider the agency’s evidence regarding training and other
      assistance it provided to the appellant during the OPS period from January 28,
      2013, to May 28, 2013. See id. Specifically, the administrative judge stated that
      the record is “devoid of sufficient evidence to determine whether the training
      given [to the appellant] was actually a reasonable opportunity to demonstrate
      adequate performance.” Id. As discussed below, we believe this finding is not
      supported by the record.
¶9            The OPS plan states that, during the 120-day period, the agency would,
      among other things, reduce the appellant’s interviewing schedule and assign her a
      new mentor who would meet with her every week at a regularly scheduled time to
      review her pending claims and action lists as well as provide weekly written
      reports to the appellant’s supervisors regarding the claims that were reviewed.
      IAF, Tab 8 at 61. The record supports the conclusion that the agency provided
      this promised assistance.
¶10           To allow time for training and to address the case backlog, during the OPS
      period both the appellant and her mentor were removed from telephone duties and
      walk-in duties during the week, were not required to take replacement claims, and
      the appellant was given only three appointments per day. IAF, Tab 7 at 8, Tab 8
      at 57. In addition, Wednesdays were established as “quiet days.” They also were
      permitted access to a private room where they could work together. IAF, Tab 7
      at 8.   The appellant’s mentor submitted a final assessment of the appellant’s
      performance in which he details the assistance provided to the appellant during
      the OPS period.      Id. at 6-12.   This included, among other things, offering
      one-on-one training and daily or weekly discussions regarding workload,
      reviewing all cases assigned to the appellant and providing her with review sheets
      identifying and explaining errors, and creating tools to address her interviewing
      skills, including a checklist to help her identify needed information. Id. at 7-8.
      The record includes copies of the numerous review sheets which detail mistakes
                                                                                      7

      the appellant made as well as other feedback provided by her mentor. IAF, Tab 6
      at 77-105.
¶11         Thus, we find that, during the 120-day OPS period, the agency assigned the
      appellant a mentor who reviewed her cases, provided her with detailed feedback,
      and held daily or weekly meetings with her to address her performance issues.
      The agency also reduced the appellant’s and her mentor’s workload to afford
      them sufficient time to address the appellant’s performance deficiencies. This
      degree of assistance is greater than that which the Board has found sufficient to
      meet an agency’s obligation.    See Goodwin v. Department of the Air Force,
      75 M.S.P.R. 204, 208-09 (1997) (finding that the agency afforded the appellant a
      reasonable opportunity to improve where it gave her a detailed performance
      improvement plan (PIP) letter and abundant written feedback during the PIP, and
      her supervisor made herself available to provide assistance but the appellant did
      not request further assistance). Accordingly, we find that the agency proffered
      substantial evidence that it afforded the appellant a reasonable opportunity to
      improve. See Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 20
      (2013) (finding that the agency afforded the appellant a reasonable opportunity to
      improve where it met with the appellant in person, as well as provided written
      and oral guidance).
      The agency established that the appellant’s performance was unacceptable.

¶12        An agency’s burden of providing substantial evidence of an appellant’s
      unacceptable performance can be met largely by submissions of documentation
      through the charges and the appellant’s working papers.          See Fernand v.
      Department of the Treasury, 100 M.S.P.R. 259, ¶ 10 (2005), aff’d, 210 F. App’x
      992 (Fed. Cir. 2006); see also Salter v. Department of the Treasury, 92 M.S.P.R.
      355, ¶ 12 (2002).     Here, the agency’s proposal notice specifically identifies
      instances during the OPS period in which the appellant’s performance was
      unacceptable in the critical elements of participation and achieves business
                                                                                8

results. IAF, Tab 6 at 58-76. Numerous emails from the appellant’s mentor to
the appellant’s supervisor during the OPS period corroborate her unacceptable
performance in these elements.      See IAF, Tab 7 at 4-56, Tab 8 at 4-57.    For
example, the appellant’s mentor identified the appellant’s failure to timely
process claims, noted that her trouble assessing and analyzing claims resulted in
repeated errors, and that, despite the mentor’s assistance, he had “not noticed an
improvement at all in the majority of the work given to [him] for review.” IAF,
Tab 7 at 10-11, 17, Tab 8 at 4-5, 8-11. Thus, we find that the agency established
that the appellant’s performance in the critical elements of participation and
achieves business results remained unacceptable during the OPS period.
Accordingly, we sustain the agency’s demotion action.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

     If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                                                                                    9

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
