UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CONRADO W. SKEPPLE,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

AT-0432-16-0320-I-1

DATE: August 18, 2022

THIS ORDER IS NONPRECEDENTIAL1

Erik De L’Etoile, Esquire, Tampa, Florida, for the appellant.

Mark Claytor, Fort Lee, 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 demoting him for unacceptable performance 

pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the 

petition for review, VACATE the initial decision, and REMAND the appeal to 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Atlanta 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 filed a Board appeal from the agency’s decision to demote 

him from the GS-1101-06 Commissary Contractor Monitor (Quality Assurance 

Evaluator) (QAE) position to the WG-6914-04 Store Worker position for 

unacceptable performance. Initial Appeal File (IAF), Tab 4 at 28-31. The record 

reflects that the QAE’s primary job duties included, among other responsibilitie s: 

(1) various customer service duties, to include addressing questions and concerns 

from both internal and external customers; (2) monitoring and reporting the 

performance of the contractor who provided various services to the commissary; 

(3) various administrative duties; and (4) maintaining a safe and secure work 

environment at the commissary for patrons and employees. IAF, Tab 13 at 77-81. 

The appellant’s performance plan for the rating period from July 1, 2014, through 

June 30, 2015, contained four critical job elements (CJEs) and one noncritical job 

element. Id. The appellant’s performance in each of the CJEs was rated on a 

three-tier system, Exceeded, Met, or Did Not Meet. Id. 

¶3 On June 7, 2015, the appellant received written notice that his performance 

was at an unacceptable level in three of the four CJEs of his performance plan, 

CJE 1—Customer Care, CJE 3—Contract Monitoring, and CJE 5—Safety and 

Security. IAF, Tab 13 at 8-12. The notice advised the appellant that he was 

being placed on a 60-day performance improvement plan (PIP), during which 

time his supervisor would monitor his performance and meet with him to review 

his work and discuss his progress. Id. at 8-11. The appellant was advised that, if 

his performance remained at an unacceptable level, appropriate action would be 

taken to demote or remove him from Federal service. Id. Following the 

conclusion of the PIP, the appellant was issued a notice of proposed demotion 
3

charging him with unacceptable performance in CJEs 1, 3, and 5. IAF, Tab 4 

at 48-51. The appellant provided an oral and a written response to the deciding 

official (DO). Id. at 8. On January 11, 2016, the DO issued a decision letter 

finding that the appellant demonstrated unacceptable performance in the three 

CJEs, as charged, and he was notified that he was being demoted to Store Worker, 

effective February 7, 2016. Id. at 28-31. The appellant then filed this appeal. 

IAF, Tab 1.

¶4 In his initial decision, the administrative judge found that the agency 

adequately communicated the appellant’s CJEs and performance standards to him 

and that the standards are valid. IAF, Tab 40, Initial Decision (ID) at 6-8. 

Regarding adequate notice of unacceptable performance, the administrative judge 

performed a Hillen2analysis on witness credibility and found the appellant’s 

assertion that he was unaware that he had been placed on a PIP was inherently 

improbable and was not credible. ID at 9-10. The administrative judge also 

found that the agency provided the appellant with a meaningful opportunity to

improve. ID at 11-15. Regarding the appellant’s performance in CJE 1—

Customer Care, the administrative judge found that the appellant was on notice of 

the agency’s expectations under CJE 1 and that the agency specifically counseled 

him over responsiveness to internal customers, including managers and 

coworkers, and being professional in his interactions with these individuals. ID

at 18. The administrative judge further found that the agency proved by 

substantial evidence the three, separate incidents of unacceptable performance 

 

2

To resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state which 

version he believes, and explain in detail why he found the chosen version more 

credible, considering factors such as the following: (1) the witness’s opportunity and 

capacity to observe the event or act in question; (2) the witness’s character; (3) any 

prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 

458 (1987).
4

under CJE 1, i.e., two distinct instances of failing to respond to his supervisor’s 

request for information about product display shelving that needed cleaning and 

one incident of sending inappropriate emails to a coworker concerning selecting a 

grocery department training course. ID at 16-24. Thus, the administrative judge 

found that the agency proved the charge of unacceptable performance in CJE 1. 

Id. Because unacceptable performance in one CJE is sufficient to sustain the 

agency’s action, the administrative judge found it unnecessary to analyze whether 

the appellant’s performance was unacceptable in CJE 3 and CJE 5. ID at 6. 

Accordingly, the administrative judge affirmed the agency’s demotion action. ID

at 24. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response. PFR File, Tab 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 At the time the initial decision was issued, the Board’s case law stated that, 

in an appeal of a performance-based action under 5 U.S.C. chapter 43, the agency 

must establish the following by substantial evidence:3 (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 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 the 

 

3

Substantial evidence is the “degree of relevant evidence that a reasonable person, 

considering the record as a whole, might accept as adequate to support a conclusion, 

even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).

4 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).
5

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 appellant’s arguments do not provide a basis to disturb the initial decision’s 

findings as to the three specifications of the unacceptable performance charge 

under CJE 1.

¶7 The appellant argues that the initial decision contains erroneous findings of 

material facts that would alter the outcome of the initial decision. PFR File, 

Tab 1. Specifically, the appellant challenges the administrative judge’s 

determination that he failed to respond as directed to two separate emails from his 

direct supervisor.5 Id. at 5-6. The appellant argues that the two emails in 

question required a response from him only if he should find issues or concerns, 

and because he found no issues, he was not required to respond. Id. The 

appellant also asserts that he was never “warned or told that he must respond” to 

the emails. Id. The appellant also argues that, because the emails required him to 

respond only if he found issues, the agency failed to prove this specification 

because it did not show that he found areas of concern and failed to bring those to 

his supervisor’s attention. Id. at 7. Thus, the appellant contends that, because the 

administrative judge’s findings are erroneous, his demotion was sustained based 

on one email that was not intended to be unprofessional. Id. 

¶8 However, after reviewing the record evidence, including the hearing record, 

we find that the appellant is arguing for the first time on review that his 

supervisor’s emails to him did not require a response. Because he has made no 

showing that this argument is based on new and material evidence not previously 

available despite his due diligence, we need not consider it. See Clay v. 

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d).

 

5

The appellant does not challenge the administrative judge’s findings that his 

performance standards are valid and that he received adequate notice of unacceptable 

performance. ID at 7-15. We see no reason to disturb those findings.
6

¶9 Nonetheless, the hearing testimony reflects that the appellant admitted that 

he knew he was expected to respond to the emails but did not do so. IAF, Tab 40, 

Hearing Compact Disc (testimony of the appellant). Additionally, the appellant 

received a June 29, 2015 email, which instructed him to walk the aisles and check 

the condition of the commissary shelves at the beginning of his next shift and to 

notify his supervisor by email about the areas found to need the supervisor’s 

attention. IAF, Tab 8 at 32-34. His supervisor’s hearing testimony and 

counseling notes for July 7, 2015, show that the appellant specifically was 

counseled regarding his failure to respond to the June 29, 2015 email. Id. at 31. 

Furthermore, the record includes a July 13, 2015 email from his supervisor to an 

agency Human Resource Specialist noting that that he had specifically discussed 

this issue with the appellant. Id. at 32. Similarly, the testimony and the 

counseling notes documenting the appellant’s July 27, 2015 meeting with his 

supervisor also reflect that the appellant was counseled concerning his failure to 

respond to his supervisor’s request for correspondence. Id. at 7. Thus, the record 

supports the administrative judge’s finding that the appellant received the emails 

from his supervisor, that he was warned of the requirement to respond to those 

emails, and that he failed to do so. 

¶10 As to the specification that the appellant sent an email that he contends was 

not meant to be unprofessional, the June 6, 2015 memorandum notifying the 

appellant of his placement on a PIP explicitly stated that he was required to 

promote a positive image, and he was not to be rude, impolite, or unprofessional 

to any customer, coworker, manager, or authorized patron. IAF, Tab 13 at 8-9. 

He also was advised that he was expected to communicate professionally with his 

coworkers. Id. The administrative judge thoroughly discussed the language used 

by the appellant in the two emails he sent to a coworker, in which he called 

another coworker a “clown,” used symbols to represent profanity, referred to 

several coworkers as “dirty people,” and accused his supervisor of “trying to 

undermine” the grocery school training selection process. ID at 20-22. We agree
7

with the administrative judge that the language the appellant used in the emails 

was “unprofessional and highly inconsistent” with CJE 1, requiring the appellant 

to promote a positive agency image and improve customer relations. IAF, Tab 13 

at 77, Tab 5 at 16; ID at 21. 

¶11 Finally, the appellant contends that the agency did not afford him a 

reasonable opportunity to improve because the agency arguably demonstrated that 

only one of the emails was unprofessional, and so, the administrative judge 

should not have determined that the agency established that he failed to meet the 

standards of CJE 1 based on this single unprofessional email. An opportunity to 

demonstrate improved performance is a substantive right afforded an employee 

under chapter 43 of title 5. Martin v. Federal Aviation Administration, 795 F.2d 

995, 997 (Fed. Cir. 1986). An agency may establish a prima facie case that it 

afforded the appellant an opportunity to improve by documentary or testimonial 

evidence showing that the appellant was offered such an opportunity, but he then 

may challenge such evidence. Adorador v. Department of the Air Force, 

38 M.S.P.R. 461, 464 (1988). The agency has the ultimate burden to prove that 

the opportunity to improve was given. Id. First, as set forth above, we disagree 

with the appellant’s claim that the agency demonstrated that he sent only one 

unprofessional email during the 60-day PIP. Second, the agency counseled the 

appellant about what he needed to do to improve his communications and told 

him how he was falling short during the PIP. Third, the appellant’s supervisor 

provided the appellant with guidance and feedback during the PIP to try to assist 

him in performing at what the agency considered an acceptable level. See

Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 623 (1984) (finding that 

an employee who is not given adequate instructions regarding the manner in 

which he is expected to perform the duties of his position has not been provided 

with an adequate opportunity to demonstrate acceptable performance). We

therefore find that the administrative judge correctly determined that the agency 

afforded the appellant a reasonable opportunity to improve. Thus, we find that 
8

the appellant has shown no basis upon which to disturb the administrative judge’s 

findings and determinations regarding any of the three specifications of the 

unacceptable performance charge under CJE 1. 

Remand is required in light of Santos.

¶12 Although the administrative judge correctly applied 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 PIP 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 now also must prove by substantial 

evidence that the appellant’s performance during the appraisal period prior to the 

PIP was unacceptable in one or more critical elements. See Lee v. Department of 

Veterans Affairs, 2022 MSPB 11, ¶¶ 15-17. The Federal Circuit’s decision in 

Santos applies to all pending cases, including this one, regardless of when the 

events took place. Id., ¶ 16. We therefore remand this case for further 

adjudication of the appellant’s demotion. 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 the appellant’s chapter 43 appeal 

because the parties were not informed of the modified standard set forth in 

Santos).

¶13 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 PIP 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 that the appellant’s 

performance in at least one critical element was at an unacceptable level prior to 
9

his placement on the PIP, the administrative judge may incorporate his prior 

findings on other elements of the agency’s case in the remand initial decision. 

ORDER

¶14 For the reasons discussed above, we remand this case to the Atlanta 

Regional Office for further adjudication in accordance with this Remand Order.

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board