UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GREGORY D. REYNOLDS,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DA-0432-19-0149-I-1

DATE: May 22, 2024

THIS ORDER IS NONPRECEDENTIAL1

Gregory D. Reynolds, Natchez, Mississippi, pro se.

Latriece Jones, Mobile, Alabama, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal for unacceptable performance. On petition for review, the

appellant argues, among other things, that he was denied the opportunity to

present evidence and witnesses, that the agency representative did not submit into

the Board record documents that the appellant provided, and that his performance

was not unacceptable because he had been rated fully successful in prior years.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
For the reasons discussed below, we GRANT the petition for review, VACATE

the initial decision, and REMAND the case to the Dallas Regional Office for

further adjudication in accordance with this Remand Order and Santos v. National

Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with the administrative judge that the agency proved the elements of its

chapter 43 action under the law when the initial decision was issued.

After a hearing, the administrative judge found that the agency proved by

substantial evidence that the Office of Personnel Management approved the

agency’s performance appraisal system, the agency communicated to the

appellant the performance standards and critical elements of his position, the

appellant’s performance standards were valid, 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 by placing him on

a 90-day performance improvement plan (PIP), and the appellant’s performance

remained unacceptable in critical element 2 of his performance standards during

the PIP period. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 5-19.

We have reviewed the record and the arguments raised on review, and agree that

the agency established the elements of its chapter 43 action under the law when

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the initial decision was issued. 2

 We must nevertheless remand the appeal to

account for Santos, as discussed below.

Regarding the appellant’s argument on review that he was denied the

opportunity to submit evidence and present witnesses, the administrative judge

set a deadline date for the submission of prehearing submissions, including the

identification of witnesses and the submission of documents. IAF, Tab 10 at 2,

Tab 17. In her April 16, 2019, Order and Summary of Telephonic Prehearing

Conference, the administrative judge approved a number of agency witnesses and

noted that the appellant did not submit prehearing submissions or request any

witnesses. IAF, Tab 19 at 5. She also informed the parties that any exhibit

offered after the prehearing conference would be untimely and would not be

admitted unless the party established good cause for the delay or the document

was not previously available. Id. The administrative judge stated in the order

that if either party disagreed with her summary, she must receive a written

objection or motion to supplement the summary no later than April 22, 2019. Id.

at 6. Neither party objected to the administrative judge’s summary.

Before the administrative judge heard witness testimony at the hearing, she

noted that the appellant had requested that he be permitted to submit evidence and

to call additional witnesses. Hearing Compact Disc (HCD) (statement of the

administrative judge). She also noted that the appellant stated that he had

2

 On review, the appellant does not assert that the administrative judge erred in her

findings regarding his affirmative defenses of harmful procedural error and retaliation

for equal employment opportunity (EEO) activity. We observe that, before analyzing

the appellant’s EEO reprisal claim, the administrative judge cited an obsolete

burden-shifting framework inconsistent with the Board’s decision in Pridgen v. Office

of Management and Budget, 2022 MSPB 31. ID at 20-21. Nevertheless, in her analyses

of the appellant’s EEO reprisal claim, the administrative judge applied the appropriate

standard to conclude that the appellant did not establish that his EEO complaint was

even a motivating factor in his removal. ID at 21. Because we agree with the

administrative judge’s finding that the appellant failed to show that any prohibited

consideration was a motivating factor in the agency’s action and the appellant has not

challenged this finding on review, we need not resolve the issue of whether the

appellant proved that retaliation was a “but-for” cause of the agency’s decision. See

Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

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attempted to submit the documents but that the limitations on the size of files that

can be submitted through the Board’s e-Appeal system precluded him from filing

the documents. Id. Additionally, she noted that the appellant admitted that he

had not faxed or mailed the documents for inclusion in the record. Id. She then

found no good cause for the appellant’s late submission and did not admit the

evidence into the record or allow the appellant to call witnesses. Id.

An administrative judge has broad discretion to control the proceedings

before her, including ruling on whether requested evidence will be admitted.

5 C.F.R. § 1201.41(b)(3); see Guerrero v. Department of Veterans Affairs,

105 M.S.P.R. 617, ¶ 20 (2007). Among other things, the Board has held that an

administrative judge may exclude evidence and witnesses where the evidence was

not identified in a prehearing submission unless good cause exists for the failure.

See Stewart–Maxwell v. U.S. Postal Service, 56 M.S.P.R. 265, 271 (1993). Here,

the administrative judge clearly informed the appellant of the time limit to file his

prehearing submission, and he did not submit documents or request witnesses

within that time limit. Further, at the hearing, he admitted that, after he

unsuccessfully tried to electronically file his large submission, he did not use

other available means to submit the pleading into the record. HCD. Thus, the

administrative judge did not abuse her discretion in refusing to grant the

appellant’s request to submit evidence and to call witnesses.

Regarding the appellant’s argument that the agency representative did not

submit into evidence documents that the appellant provided to him, there is no

requirement that a party submit to the Board material provided by the opposing

party. If the appellant possessed evidence that he wanted the Board to consider,

he should have filed it with the Board consistent with the administrative judge’s

instructions and the Board’s regulations. The appellant’s argument that his

removal for poor performance was improper because he had been rated fully

successful in the past is without merit. The fact that the appellant’s performance

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in 2017 and before was deemed fully successful does not mean that the appellant

performed acceptably after that. 3 

 Remand is required in light of Santos.

Though the appellant has identified no basis for us to disturb the initial

decision, we nonetheless must remand this appeal for another reason. During the

pendency of the petition for review in this case, the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that, in

addition to the five elements of the agency’s case set forth in the initial decision,

the agency must also justify the institution of a PIP by proving that the

employee’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. We therefore remand this case for further adjudication of the

appellant’s removal under the standard set forth in Santos. See id. (remanding the

appellant’s chapter 43 appeal because the parties did not have an opportunity to

address the modified standard set forth in Santos).

On remand, the administrative judge shall accept evidence and argument

from both parties regarding whether the agency proved by substantial evidence

3

 Attached to the appellant’s petition for review and supplement are a number of

documents, including a copy of an Agreement to Mediate an EEO Precomplaint, a copy

of the appellant’s fiscal year 2018 performance appraisal and his comments to it, a copy

of the decision on the appellant’s unemployment insurance claim, a copy of a letter

from the appellant regarding his refusal to accept his 2018 midyear performance review,

and copies of documents related to a project on which the appellant worked. Petition

for Review File, Tab 1 at 5-35, Tab 3 at 8-186. The appellant’s 2018 performance

appraisal was submitted into the record below. The remainder of the submissions are

offered for the first time on review. Under 5 C.F.R. § 1201.115, the Board generally

will not consider evidence submitted for the first time with a petition for review absent

a showing that it was unavailable before the record was closed before the administrative

judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 213-14 (1980). The documents are dated before the close of the record below, and

the appellant has not explained why they could not have been submitted previously.

Accordingly, we need not consider the documents. In any event, we fail to discern how

the documents demonstrate error in the initial decision. 

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that the appellant’s pre-PIP performance 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 her 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 pre-PIP

performance affects the analyses of the appellant’s affirmative defenses, the

administrative judge should address such argument or evidence in the 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 and her legal reasoning, as

well as the authorities on which that reasoning rests).

ORDER

For the reasons discussed above, we remand this case to the Dallas

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

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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