Case: 19-1676 Document: 53 Page: 1 Filed: 08/25/2020
United States Court of Appeals for the Federal Circuit ______________________
TAWANA HARRIS, Petitioner
v.
SECURITIES AND EXCHANGE COMMISSION, Respondent ______________________
2019-1676 ______________________
Petition for review of the Merit Systems Protection Board in No. DC-0432-18-0390-I-1. ______________________
Decided: August 25, 2020 ______________________
DAVID BRANCH, Law Office of David A. Branch, Wash- ington, DC, argued for petitioner.
MOLLIE LENORE FINNAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent. Also repre- sented by ETHAN P. DAVIS, REGINALD THOMAS BLADES, JR., ROBERT EDWARD KIRSCHMAN, JR., ADAM E. LYONS; CHRISTINA ANNE COTTER, Office of the General Counsel, United States Securities and Exchange Commission, Washington, DC. ______________________ Case: 19-1676 Document: 53 Page: 2 Filed: 08/25/2020
Before NEWMAN, LINN, and HUGHES, Circuit Judges. HUGHES, Circuit Judge. Tawana Harris petitions for review of a decision by the Merit Systems Protection Board upholding her perfor- mance-based removal by the Securities and Exchange Commission (SEC). Because substantial evidence supports the Board’s factual findings, we affirm. I A From 2014 to 2018, Ms. Harris was the Branch Chief of the Continuity of Operations (COOP) branch, a division of the SEC’s Office of Support Operations (OSO) in Wash- ington, D.C. The COOP branch is responsible for ensuring that the SEC can continue performing essential functions in the event of an emergency, such as a natural disaster. In February 2018, Ms. Harris was removed from the agency for “unacceptable performance” of her duties, pur- suant to chapter 43 of title 5. See 5 U.S.C. § 4303(a) (au- thorizing federal agencies to “remove an employee for unacceptable performance”). Chapter 43 governs the “Performance Appraisal” of federal agency employees, establishing standards for eval- uating work performance and imposing sanctions of re- moval or demotion for unacceptable performance. 5 U.S.C. §§ 4301–4315; Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558, 1561 (Fed. Cir. 1985). Chapter 43 defines “unac- ceptable performance” as “performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position.” 5 U.S.C. § 4301(3) (2012). The term “critical element” is also a term of art, referring to a key “work assignment or responsibility” established as part of the written perfor- mance standards for each type of position within the agency. See 5 C.F.R. § 430.203. Performance standards and critical elements of each employee’s position must be Case: 19-1676 Document: 53 Page: 3 Filed: 08/25/2020
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communicated to the employee at the beginning of each ap- praisal period, 5 U.S.C. § 4302(b)(2) (2012), 1 which gener- ally runs for 12 months, 5 C.F.R. § 430.206(a)(2). Each agency’s performance appraisal system must “provide for . . . reassigning, reducing in grade, or removing employ- ees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable perfor- mance.” 5 U.S.C. § 4302(b)(6) (2012). Agencies typically provide this opportunity to demonstrate acceptable perfor- mance by placing the underperforming employee on a Per- formance Improvement Plan, or PIP. B On October 13, 2016, Ms. Harris received her 2017 Per- formance Work Plan from her then-supervisor, Kelly Gibbs, covering the period from October 1, 2016, through September 30, 2017. Like the year before, Ms. Harris’s 2017 performance work plan included three critical ele- ments, two of which are at issue here: (1) Achieving Results in Occupation and (2) Teamwork and Collaboration. The uniform four-level performance rating scale for each criti- cal element progressed from “Unacceptable,” to “Improve- ment Required,” to “Accomplished Practitioner,” and up to “Performance Leader.” In December 2016, Ms. Harris’s second-line manager and OSO Deputy Director, Olivier Girod, detailed Ms. Har- ris to work directly under him in a non-supervisory capac- ity while the agency investigated accusations that one of
1 On December 12, 2017, this section was amended to insert certain whistleblower protections at subsec- tion (b) and redesignate the former subsection (b) as sub- section (c). Pub. L. No. 115-91, § 1097(d)(1), 131 Stat. 1619 (2017); see 5 U.S.C. § 4302 (Supp. V 2012). Because these amendments post-date the adverse employment action at issue here, this opinion refers to the earlier codification. Case: 19-1676 Document: 53 Page: 4 Filed: 08/25/2020
her employees had made against her. In June 2017, after the investigation concluded without disciplinary action, Ms. Harris returned to her Branch Chief duties. Aimée Primeaux then became her direct supervisor, as Ms. Gibbs had since transferred to another branch of the OSO. It was after Ms. Primeaux began supervising Ms. Harris that the performance issues on appeal began to surface. On October 2, 2017, Ms. Primeaux notified Ms. Harris in writing and in person that she was being placed on a 90-day PIP. The PIP notice stated that Ms. Harris had per- formed unacceptably over the last three months of the ap- praisal period in both the Achieving Results in Occupation and Teamwork and Collaboration critical elements. The notice described examples such as disregarding Ms. Pri- meaux’s guidance in revising certain work products; com- ing to meetings unprepared; and demonstrating inflexibility regarding Ms. Primeaux’s communications with the three to four COOP branch employees Ms. Harris supervised—Ms. Primeaux’s second-line reports—includ- ing telling Ms. Primeaux to copy her on all communications to her staff, and requesting that Ms. Primeaux send docu- ments to her prior to sending them to her staff. The PIP notice informed Ms. Harris that she would have 90 days to improve her performance in both critical elements at issue to at least the Improvement Required level. To do so, she would need to satisfy fifteen Perfor- mance Improvement Requirements. Among the ten re- quirements for improved performance in the Achieving Results in Occupation critical element were: (1) on no more than two occasions during the PIP could she “fail to follow the instructions of management or to effectively incorpo- rate management feedback into [her] work product,” and (2) on no more than two occasions could she “fail to demon- strate technical proficiency and expertise on COOP-related matters.” J.A. 178. Of the five requirements for improved performance in the Teamwork and Collaboration critical el- ement, the most relevant here is that on no more than two Case: 19-1676 Document: 53 Page: 5 Filed: 08/25/2020
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occasions could she “fail to appropriately engage and col- laborate with” team members on COOP-related matters. J.A. 179. The PIP notice advised Ms. Harris that Ms. Pri- meaux would monitor her performance and provide guid- ance and feedback, and that they would meet weekly to review Ms. Harris’s progress. Id. During the PIP period, the following events transpired which would later form the basis of Ms. Harris’s removal. On October 5, 2017, in response to Ms. Harris’s previous requests for increased COOP branch staffing, Ms. Pri- meaux asked Ms. Harris to prepare a draft report of the COOP branch’s core projects and the estimated time re- quired to complete them (“the COOP Resource Analysis Project”). Ms. Primeaux set a two-week deadline to receive a draft of the report. But Ms. Harris asked for an exten- sion, explaining that in 2012 and 2013, the OSO had hired a consultant firm to conduct a COOP work force analysis, and it had taken four consultants a combined 2,400 hours to complete the project. Ms. Primeaux denied an extension, explaining that she “simply want[ed] to know what the core work of the program is, and an approximation of how many hours it takes to do that work.” J.A. 211. Ms. Harris submitted a draft report in the form of a Microsoft Excel spreadsheet, which listed time estimates for COOP tasks in text format rather than numerically (e.g., “240 hours,” or “80 hours”) and contained addition er- rors. Ms. Primeaux reviewed the draft with Ms. Harris, pointed out the deficiencies, and suggested using Excel for- mulas to ensure accuracy. Over the following weeks, Ms. Harris provided several revised versions of the spread- sheet, all of which were missing time estimates for various tasks and contained incorrect total estimates. When Ms. Harris complained that she lacked sufficient time and training to prepare the report, Ms. Primeaux responded that she would support Ms. Harris pursuing advanced Ex- cel training although it was not required for this Case: 19-1676 Document: 53 Page: 6 Filed: 08/25/2020
assignment. Ms. Primeaux ended up fixing the spread- sheet for Ms. Harris by removing the word “hours” from each of the time estimate cells and inserting summation and division formulas She also suggested a basic Excel class that Ms. Harris could take. When Ms. Primeaux still had not received a complete and accurate report by November 2, she decided to shift their focus to preparing a written executive summary of Ms. Harris’s findings from the analysis. On November 9, Ms. Harris sent Ms. Primeaux an email with her executive summary pasted directly into the body of the email and largely focused on the need for more time and resources to complete a workforce analysis like the consultants com- pleted in 2013. Ms. Primeaux found the summary unpro- fessionally formatted, inadequate in scope, and lacking meaningful action items. Around the same time, managers across the OSO were preparing 2017 performance evaluations for their direct re- ports. On October 23, 2017, Ms. Harris met with Mr. Girod, Ms. Primeaux, and Vicki Clancy—who had tem- porarily supervised the COOP branch while Ms. Harris was on detail—to “calibrate” the performance ratings for the COOP branch staff. During the three-hour meeting, the group discussed the appropriate ratings for Ms. Har- ris’s three employees: Robert Achoe, Vincent Holland, and Leroy Woodall. They discussed giving Mr. Holland a rating of “Improvement Required” for one of his critical elements. Ms. Harris raised concerns about how Mr. Holland might react to receiving such a low rating. Given that he was sometimes “[v]ery angry, hostile,” and “unpredictable,” Ms. Harris expressed hesitancy about communicating a poor performance review to him one-on-one. J.A. 274–75, 284, 288; see J.A. 286. Ms. Clancy agreed that she also would not be comfortable issuing that rating to him alone, and so the two of them should jointly deliver Mr. Holland’s assessment. Case: 19-1676 Document: 53 Page: 7 Filed: 08/25/2020
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Based on these behavioral concerns, Mr. Girod con- tacted human resources officials and the Office of General Counsel. At their advice, Mr. Girod asked OSO Assistant Director David Brown to look further into Mr. Holland’s be- havior. He introduced Mr. Brown to Ms. Harris, asking her to “work with [Mr. Brown] in providing any requested information so that we can handle this matter appropri- ately.” J.A. 282. Ms. Harris and Mr. Brown met for two hours on November 15. Mr. Brown relayed his detailed notes of the meeting to Mr. Girod, reporting that Ms. Har- ris had been “defensive and reticent” and inexplicably un- cooperative with his inquiry. J.A. 288. Ms. Harris also never responded to his request for certain documents that she had offered to provide relating to Mr. Holland’s behav- ior. Meanwhile, final employee performance ratings and narratives were to be uploaded to the evaluations system by November 13. On November 6, Ms. Primeaux emailed Ms. Harris and Ms. Clancy to confirm that they would be “co-planners” for the three COOP branch employees that they had both supervised at different times during the 2017 cycle. J.A. 302. Ms. Harris was responsible for sub- mitting Mr. Achoe’s and Mr. Holland’s calibrated ratings, incorporating Ms. Clancy’s feedback for the months when she supervised them. On November 13, Ms. Harris up- loaded ratings and narratives for each of them, but (1) they covered only a fraction of the year, (2) she rated Mr. Hol- land as an Accomplished Practitioner for both of his critical elements, and (3) she did not include any comments from Ms. Clancy. On December 6, 2017, after several weeks of re-submitting noncompliant evaluations, Ms. Harris final- ized her staff appraisals. On January 8, 2018, after the PIP period ended, Ms. Primeaux issued Ms. Harris a notice of proposed re- moval. The proposed removal charged Ms. Harris with eight instances of failing to meet the Performance Improve- ment Requirements set for the Achieving Results in Case: 19-1676 Document: 53 Page: 8 Filed: 08/25/2020
Occupation critical element and three instances of failing to meet those set for the Teamwork and Collaboration crit- ical element. First, the proposed removal charged Ms. Har- ris with failing to follow management instructions and incorporate management feedback on four occasions: 1. By failing to respond to Mr. Brown’s request for additional documentation after their meeting about Mr. Holland’s behavior, despite Mr. Girod asking her to cooperate; 2. By sending Ms. Primeaux a revised Excel spreadsheet for the COOP Resource Analysis Project that did not contain formulas, despite Ms. Primeaux recommending formulas and providing resources for assistance; 3. By uploading incomplete staff performance nar- ratives on November 13, 2017 and not collabo- rating with Ms. Clancy to incorporate her feedback for them; and 4. By providing an updated performance narrative for Mr. Holland on November 21, 2017 that still omitted Ms. Clancy’s feedback and did not cover the entire performance cycle. J.A. 168. The proposed removal further charged Ms. Har- ris with failing to demonstrate technical proficiency and ex- pertise on COOP-related matters on four occasions during her attempts to revise the spreadsheet for the COOP Re- source Analysis Project and in preparing a low-quality ex- ecutive summary of the project. J.A. 168–69. Finally, the proposed removal charged Ms. Harris with failing to coop- erate with and meaningfully support OSO management in- itiatives on three occasions: 1. By failing to convey Mr. Holland’s performance deficiencies by refusing to give him the formerly agreed-upon Improvement Required rating for the Achieving Results in Occupation critical Case: 19-1676 Document: 53 Page: 9 Filed: 08/25/2020
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element—instead rating him an Accomplished Practitioner; 2. By not cooperating with Mr. Brown to help ad- dress employee misconduct; and 3. By repeatedly pushing for more time and train- ing to complete the COOP Resource Analysis Project, despite Ms. Primeaux consistently com- municating that she was looking for approxima- tions, not a complex report. J.A. 170–71. In late January, Ms. Harris (with assistance of counsel) provided an oral response to the proposed removal. On February 21, 2018, Mr. Girod issued a final removal deci- sion, removing Ms. Harris from her position effective im- mediately. C Ms. Harris appealed her removal to the MSPB, arguing that the agency had not proven the merits of its removal action, and that her removal was motivated by race dis- crimination and retaliation for her various prior Equal Em- ployment Opportunity (EEO) complaints against SEC management. As will be discussed further, this combina- tion of arguments made her appeal to the MSPB a “mixed case” because she challenged her removal as being, at least in part, due to unlawful bias. See Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1979 (2017). Besides challenging the sufficiency of the evidence supporting her removal under chapter 43, Ms. Harris presented two affirmative de- fenses—race discrimination and retaliation—based on (1) receiving positive reviews and recognition before her first EEO complaint in 2016; (2) being placed on the PIP after only three months under Ms. Primeaux’s supervision; (3) facing subjective and unattainable performance re- quirements under the PIP; and (4) enduring Ms. Prime- Case: 19-1676 Document: 53 Page: 10 Filed: 08/25/2020
aux’s shifting criteria for the various PIP tasks. J.A. 676–78. At a hearing on July 24, 2018, the Administrative Judge heard testimony from six witnesses, including Ms. Harris, Ms. Primeaux, Mr. Girod, and Mr. Brown. 2 The Administrative Judge then issued a detailed decision upholding Ms. Harris’s removal, finding that substantial evidence supported the agency’s action, and that Ms. Har- ris had not proved her removal was the product of discrim- ination or retaliation. Harris v. Sec. & Exch. Comm’n, No. DC-0432-18-0390-I-1, 2018 WL 6682317, slip op. at 22 (M.S.P.B. Dec. 13, 2018) (Board Decision); see 5 U.S.C. § 7701(c)(1)(A), (2)(B). The Administrative Judge’s initial decision became the final decision of the Board on January 17, 2019. See 5 U.S.C. § 7701(e)(1). Ms. Harris timely petitioned for re- view. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II Under our narrow standard of review, we will set aside a final decision of the Board only if the decision is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures
2 Although Ms. Harris provided neither a written transcript nor an audio recording of the administrative hearing, we have obtained from the MSPB a copy of the full administrative record—including the audio recordings of the hearing. We decline the government’s suggestion to disregard all of Ms. Harris’s arguments supported only by citation to the audio recording. See Kinslow v. Dep’t of the Treasury, 315 F. App’x 286, 288 (Fed. Cir. 2009) (un- published per curiam) (accepting audio recording of admin- istrative hearing as a substitute for a written transcript). Nonetheless, we strongly urge litigants to provide written hearing transcripts whenever possible. Case: 19-1676 Document: 53 Page: 11 Filed: 08/25/2020
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required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). “This court’s role is further circumscribed when reviewing a performance-based action taken under [c]hap- ter 43” because of the deference owed to each agency’s judg- ment regarding its employees’ performance “‘in light of the agency’s assessment of its own personnel needs and stand- ards.’” Martin v. F.A.A., 795 F.2d 995, 997 (Fed. Cir. 1986) (quoting Lisiecki, 769 F.2d at 1562 (in turn quoting S. REP. NO. 95-969, at 45 (1978))). Federal agencies that wish to remove an employee for poor performance have two procedural routes available to them: one under chapter 43, and another under chap- ter 75. 3 See Sayers v. Dep’t of Veterans Affs., 954 F.3d 1370, 1378–79 (Fed. Cir. 2020) (explaining differences between chapter 43 and chapter 75 adverse actions); Lisiecki, 769 F.2d at 1566 (same). Removal or demotion by an agency under chapter 43 is “subject to a more limited review” by the Board than actions under chapter 75. Eibel v. Dep’t of the Navy, 857 F.2d 1439, 1444 (Fed. Cir. 1988); compare 5 U.S.C. § 7701(c)(1)(A) (agency decision based on chap- ter 43 sustained if supported by substantial evidence), with id. § 7701(c)(1)(B) (agency decision in any other case sus- tained if supported by a preponderance of the evidence).
3 These options are not mutually exclusive. See Lovshin v. Dep’t of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc) (noting that an agency might charge an em- ployee under “Chapter 43 for ‘unacceptable performance’ in a critical element with an alternative, or additional charge, under Chapter 75 for ‘such cause as will promote the effi- ciency of the service’” (first quoting 5 U.S.C. § 4303(a); and then quoting 5 U.S.C. § 7513(a))). Although chapter 75 is typically invoked for misconduct-based actions, it also au- thorizes performance-based actions. Id. Case: 19-1676 Document: 53 Page: 12 Filed: 08/25/2020
In order to properly remove or demote an employee un- der chapter 43, the agency must have (1) established a per- formance appraisal system approved by the Office of Personnel Management, (2) communicated objective and reasonable written performance standards and critical ele- ments of an employee’s position to her at the beginning of the appraisal period, (3) warned her of inadequacies in crit- ical elements during the appraisal period, and (4) coun- seled and afforded her an opportunity for improvement after proper notice. Lovshin v. Dep’t of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc); Martin, 795 F.2d at 997. “If those requirements have been satisfied, an agency may reduce in grade or remove an employee for re- ceiving a rating of ‘unacceptable’ with respect to even a sin- gle critical element.” Martin, 795 F.2d at 997 (emphasis in original) (citation and internal quotation marks omitted). Ms. Harris’s arguments primarily involve the third and fourth elements as she asserts that she received neither adequate warning of her performance issues nor a mean- ingful opportunity to improve. 4
4 In a single paragraph of her opening brief, and without citing any legal authority, Ms. Harris also argues that she was deprived of due process because Mr. Girod— who was named as the responsible management official in Ms. Harris’s prior EEO complaints—was not a neutral fi- nal decisionmaker. Pet. Br. 37. We decline to reach this due process argument, as it is both undeveloped on appeal and was waived before the administrative hearing. Board Decision at 4 n.5; J.A. 676; Order and Summary of Tele- phonic Prehearing Conference, Harris v. Sec. & Exch. Comm’n, No. DC-0432-18-0390-I-1, MSPB File, Tab 13, at 2; see Ladd v. United States, 713 F.3d 648, 655 (Fed. Cir. 2013); SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). Case: 19-1676 Document: 53 Page: 13 Filed: 08/25/2020
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A To satisfy the third element required for disciplinary action under chapter 43, the agency must have “warned [the employee] of inadequacies in critical elements during the appraisal period.” Lovshin, 767 F.2d at 834 (internal quotation marks omitted). Ms. Harris argues that Ms. Pri- meaux did not sufficiently warn her that her performance was critically deficient before placing her on the PIP, and intimates that the Administrative Judge erred by “treat[ing] the PIP itself as the instance of warning of un- acceptable performance.” 5 Pet. Br. 26, 28–29. But, as Ms. Harris conceded at oral argument, there is no rule or regulation requiring an agency acting under chapter 43 to notify or warn an underperforming employee of a perfor- mance problem before issuing a PIP. See Oral Arg. at 26:03–37, 27:14–20, http://oralarguments.cafc.uscourts. gov/default.aspx?fl=2019-1676.MP3. Indeed, the PIP no- tice itself often serves as the warning. See J.A. 176–77 (listing examples of unacceptable performance); Greer v. Dep’t of the Army, 79 M.S.P.R. 477, 481 (Aug. 28, 1998) (noting that “the PIP notice itself unmistakably informed” the appellant that his performance in a critical element was not satisfactory). Ms. Harris objects, however, that because her PIP no- tice was issued on October 2, 2017—after the 2017 ap- praisal period ended on September 30—she was not warned “during the appraisal period,” as Lovshin purport- edly requires. 767 F.2d at 834; Pet. Br. 28. This argument misreads Lovshin. There, we said that an agency may take action under chapter 43 if it has, among other things,
5 Although Ms. Harris intersperses these assertions within her argument that she lacked a meaningful oppor- tunity to improve, we believe it prudent to address them separately before next addressing her arguments related to the fourth element. Case: 19-1676 Document: 53 Page: 14 Filed: 08/25/2020
“communicated the written performance standards and ‘critical elements’ of an employee’s position to the employee at the beginning of the appraisal period, [and] has warned of inadequacies in ‘critical elements’ during the appraisal period.” Lovshin, 767 F.2d at 834. Reading these two con- ditions together makes clear that Lovshin does not require that the warning come at any particular time, but rather requires that the warning relate to inadequacies that oc- curred during the same appraisal period for which the writ- ten performance standards were communicated. We agree with the government that the goal of these twin require- ments—communicated standards and a related deficiency warning—“prevent the agency from starting a PIP for fail- ures in one period that are only failures when judged against standards from another period.” Resp. Br. 37–38. The applicable chapter 43 regulation confirms this read- ing: “At any time during the performance appraisal cycle that an employee’s performance is determined to be unac- ceptable in one or more critical elements, the agency shall notify the employee . . . .” 5 C.F.R. § 432.104. The regula- tion focuses only on the time when the inadequacies oc- curred, placing no condition on when the notification or warning occurs. Ms. Harris’s PIP notice warned her of numerous inad- equacies occurring in the last two months of the 2017 ap- praisal period, as judged against the 2017 written performance standards which she acknowledged receiving at the beginning of that period. E.g., J.A. 176 (listing fail- ures to perform certain duties within a critical element “at a minimally acceptable level during the 2017 rating pe- riod”); see J.A. 361 (signed 2017 Performance Work Plan). Substantial evidence thus supports the Administrative Judge’s determination that Ms. Harris was sufficiently warned of her inadequate performance. Case: 19-1676 Document: 53 Page: 15 Filed: 08/25/2020
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B As to the fourth element, requiring a reasonable oppor- tunity to improve, Ms. Harris contends that her PIP stand- ards were unreasonable and that the Administrative Judge erred by ignoring evidence of agency actions before and during the PIP showing that her termination was predeter- mined. 1 Before reaching the substance of these arguments, we must address the government’s jurisdiction-related objec- tion to Ms. Harris continuing to argue in this court that her PIP placement was pretextual and that her removal was predetermined. The government contends that if we enter- tain these continued pretext arguments then this appeal remains a “mixed case” over which we lack jurisdiction. A mixed case is one in which a federal employee (1) complains of having suffered a serious adverse person- nel action appealable to the MSPB and (2) attributes the adverse action, in whole or in part, to bias prohibited by federal antidiscrimination laws. Perry, 137 S. Ct. at 1979; Williams v. Dep’t of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc); see 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.151. It is undis- puted that Ms. Harris presented a mixed case to the Board when she appealed her performance-based removal, assert- ing twin affirmative defenses that her removal was due to race discrimination and prohibited retaliation, see Wil- liams, 715 F.2d at 1487 (discrimination claims before the MSPB appear as “allegation[s] in the nature of an affirma- tive defense”). But whereas the Board has jurisdiction to hear appeals of mixed cases, we do not. Compare 5 U.S.C. § 7702(a)(1) (granting the MSPB jurisdiction to “decide both the issue of discrimination and the appealable action”), with id. § 7703(b)(1)(B) (granting the Federal Circuit jurisdiction Case: 19-1676 Document: 53 Page: 16 Filed: 08/25/2020
over a “final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited per- sonnel practice” covered by federal antidiscrimination law, among others) (emphasis added)); see Perry, 137 S. Ct. at 1988 (“[I]n mixed cases . . . in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.”). Still, a petitioner’s explicit waiver of her discrimination claims in such a case effectively converts the case to a standard appeal of the adverse personnel action—provid- ing this court with jurisdiction to review the Board’s deci- sion (without considering any discrimination claims). See Diggs v. Dep’t of Hous. & Urban Dev., 670 F.3d 1353, 1355 n.2 (Fed. Cir. 2011) (noting that in a mixed case, “we have jurisdiction over the adverse action claim if ‘any claim of discrimination . . . raised before the Board has been abandoned and will not be raised or continued in this or any other court’” (quoting Fed. Cir. R. 15(c) (June 2011)) (omission in original). Ms. Harris availed herself of that option here. After filing her petition for review in this court, she submitted a Form 10 Statement Concerning Dis- crimination averring that “[a]ny claim of discrimination . . . raised before and decided by the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court.” Dkt. No. 13. According to the government, having thus formally waived her discrimination and retaliation claims, Ms. Har- ris cannot now assert any arguments that the PIP was pre- textual or that her termination was predetermined without returning this appeal to mixed case status. That is not so. In challenging the MSPB’s final decision in this court, Ms. Harris is as free as any other litigant to press any ar- gument not based on claims of prohibited discrimination or retaliation. And the pretext and predetermination argu- ments contained in her briefs here do not rest on the Case: 19-1676 Document: 53 Page: 17 Filed: 08/25/2020
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discrimination and retaliation claims she presented to the MSPB. 6 She does not suggest, for instance, that any racial animus or illegal retaliation motivated her PIP placement and eventual removal. She simply argues that the reasons given for placing her on the PIP, and the poor assessment of her performance during the PIP, were insincere and con- tradicted by record evidence. The government also suggested at oral argument that Ms. Harris’s ongoing district court case against the SEC belies her Form 10 waiver of discrimination claims filed in this court. Oral Arg. at 12:49–14:40, http://oralargu- ments.cafc.uscourts.gov/default.aspx?fl=2019-1676.MP3; see Harris v. Clayton, No. 18-cv-1840 (D.D.C. filed Aug. 6, 2018). Ms. Harris’s district court complaint alleges viola- tions of federal antidiscrimination laws arising from a va- riety of allegedly adverse actions by SEC management preceding her termination, some of which are also men- tioned in her briefing here. Complaint ¶¶ 31, 37, 42, Har- ris v. Clayton, No. 18-cv-1840 (D.D.C. Aug. 6, 2018); see L.A. Biomedical Rsch. Inst. at Harbor-UCLA Med. Ctr. v. Eli Lilly & Co., 849 F.3d 1049, 1062 n.6 (Fed. Cir. 2017) (“We can properly take judicial notice of the records of re- lated court proceedings.”). The complaint does not in any way challenge her removal itself—the only adverse person- nel action appealed to the MSPB, and the only personnel action we now review. Contrary to the government’s rep- resentation at oral argument, Ms. Harris’s district court
6 As we mention below, infra note 7, the fact that Ms. Harris cabined her pretext and predetermination ar- guments within her discrimination and retaliation affirm- ative defenses before the Board may be a reason to conclude that she has not preserved any assertions of pre- text or predetermination unconnected with her discrimina- tion and retaliation claims. But it is not a reason to view this petition as a mixed case. Case: 19-1676 Document: 53 Page: 18 Filed: 08/25/2020
complaint does not seek “reinstatement” as relief; it seeks damages for allegedly discriminatory conduct that tran- spired before her removal. Complaint at 11, Harris, No. 18-cv-1840. By seeking damages for the agency’s other purported adverse employment actions, Ms. Harris has not impermissibly bifurcated review of the MSPB’s decision re- garding her removal. See Williams, 715 F.2d at 1488–90. Indeed, Ms. Harris filed her district court complaint before the Administrative Judge had even rendered his initial de- cision in this case. What impact, if any, Ms. Harris’s Form 10 waiver might have on her district court claims is a question best left to the district court. The existence of that concurrent action does not diminish our authority to review the present case, which no longer involves any claims of discrimination. As both parties urge, we will hold Ms. Harris to her for- mal waiver of any discrimination or retaliation claims de- cided by the MSPB, see Dkt. No. 13 (Form 10), and thus retain jurisdiction over this appeal, including Ms. Harris’s non-discrimination/retaliation-based pretext arguments. See Higgins v. Dep’t of Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020) (finding appellate jurisdiction where peti- tioner filed amended Form 10 abandoning all discrimina- tion claims). 2 Moving to the merits, Ms. Harris advances several the- ories as to why the Administrative Judge should have found that she was not afforded the meaningful oppor- tunity to improve required by chapter 43. See 5 U.S.C. § 4302(b)(6) (2012) (requiring agencies’ performance ap- praisal systems to provide for demotions or removal of em- ployees “who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance”); 5 C.F.R. § 432.104 (“For each critical ele- ment in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable Case: 19-1676 Document: 53 Page: 19 Filed: 08/25/2020
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opportunity to demonstrate acceptable performance, com- mensurate with the duties and responsibilities of the em- ployee’s position.”); Martin, 795 F.2d at 997; Lovshin, 767 F.2d at 834. But none of Ms. Harris’s theories demonstrate a lack of substantial evidence supporting the Board’s deci- sion. We begin with the simplest: that the PIP standards were not reasonable. Ms. Harris briefly argues that the PIP’s fifteen Performance Improvement Requirements were overly broad, but she substantively challenges only the timing and other parameters Ms. Primeaux placed on the COOP Resource Analysis Project. Ms. Harris argues that the Administrative Judge failed to address the sub- stantial evidence that Ms. Primeaux set an unattainable deadline to complete the project in nine days when the con- sulting firm took 2,400 work hours to complete its “similar project” in 2013, and that she unreasonably insisted that Ms. Harris use Excel formulas to calculate staffing needs. Pet. Br. 30–32. The first case Ms. Harris cites in support of her argu- ments is both non-precedential and inapposite. See Talbot v. Dep’t of Health & Human Servs., 878 F.2d 1446, 1989 WL 54703 (Fed. Cir. 1989) (unpublished table op.). Talbot involved an agency establishing “unattainable timeframes” for its general performance evaluation stand- ards in violation of 5 U.S.C. § 4302(b)(1) (1982) (requiring each agency’s performance appraisal system to provide for performance standards that “permit the accurate evalua- tion of job performance on the basis of objective criteria”) (currently codified at § 4302(c)(1)). 1989 WL 54703, at *1. It says nothing about assessing the reasonableness of indi- vidual tasks or projects assigned during a PIP. Even assuming such assessment is appropriate, sub- stantial evidence supports the Administrative Judge’s re- jection of Ms. Harris’s testimony that she lacked sufficient time, resources, and training to complete the COOP Case: 19-1676 Document: 53 Page: 20 Filed: 08/25/2020
Resource Analysis Project. See Board Decision at 13. Ms. Harris was given two weeks to complete just a draft of the resource analysis, and Ms. Primeaux clarified that she was simply looking for an approximation of the hours re- quired to fulfill the COOP branch’s core work. J.A. 211. There is no support beyond Ms. Harris’s own testimony for her contention that she was being asked to replicate the level of analysis previously completed by hired consultants. The Administrative Judge acknowledged this testimony but found it “plainly refuted” by other record evidence in- cluding the examples just described. Board Decision at 13; see Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“The credibility determinations of an ad- ministrative judge are virtually unreviewable on appeal.”). As we have said in reviewing the findings of other admin- istrative tribunals, “the presence of evidence supporting the opposite outcome does not preclude substantial evi- dence from supporting the Board’s fact finding.” Arthrex, Inc. v. Smith & Nephew, Inc., 935 F.3d 1319, 1329 (Fed. Cir. 2019). We find equally unavailing Ms. Harris’s reliance on Ad- amsen v. Department of Agriculture for the proposition that we should scrutinize Ms. Primeaux’s instruction to use Ex- cel formulas to calculate staff hours. 563 F.3d 1326 (Fed. Cir. 2009), opinion modified on reh’g, 571 F.3d 1363 (Fed. Cir. 2009). In Adamsen we stated without deciding that “[o]ne might question” whether it was valid to remove a longtime employee solely for “the failure to use a partic- ular computer model in doing research.” 563 F.3d at 1333. Still, because Mr. Adamsen’s original performance plan re- quired use of that computer model, we rejected his argu- ment that he was not given an opportunity to show improvement. Id. Whatever the import of our hypothetical questioning in Adamsen, Ms. Harris’s case is quite distinct. She was not removed for failing to use Excel, and certainly not removed solely for not incorporating formulas in the spreadsheet. Both Ms. Harris’s failure to incorporate Case: 19-1676 Document: 53 Page: 21 Filed: 08/25/2020
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simple formulas provided by Ms. Primeaux and her failure to otherwise produce accurate calculations are relevant to the agency finding that Ms. Harris failed to follow manage- ment instructions and did not demonstrate technical profi- ciency as required by the PIP notice. J.A. 168–71. Ms. Harris has not shown that her PIP standards were un- reasonable. Next, Ms. Harris argues that she was not given a meaningful opportunity to improve because agency actions both before and during the PIP showed that her removal was predetermined. 7 Beginning with the pre-PIP agency actions, Ms. Harris asserts that the justifications for plac- ing her on the PIP were “manufactured,” alleging a pattern of targeting, specifically evidenced by (1) the PIP justifica- tion related to Ms. Primeaux’s direct communications with Ms. Harris’s staff that did not align with her Leading Peo- ple critical element; (2) Ms. Primeaux misrepresenting the problems with her work product revision as another reason for the PIP; and (3) Mr. Girod suddenly deciding to detail her to a non-supervisory position without verifying the complaint lodged against her. Pet. Br. 27–28. She urges that the Administrative Judge erred by omitting these facts from his analysis. Id. at 26, 29. Initially, just because the Administrative Judge did not discuss all of these pre-PIP events does not mean he did not consider them in reaching his decision—and the decision does in fact describe Ms. Harris being temporarily detailed to a new assignment by Mr. Girod, see Board Decision at 2. The evidence supporting these arguments consists almost entirely of Ms. Harris’s testimony. The Administrative
7 To the extent these arguments were not raised be- fore the Board, they are waived. We exercise our discretion to reach them, nonetheless, as they essentially contest whether substantial evidence supports the agency’s re- moval action, an issue that was squarely before the Board. Case: 19-1676 Document: 53 Page: 22 Filed: 08/25/2020
Judge noted the lack of evidentiary support for Ms. Harris’s hearing testimony that agency officials conspired to place her on an “impossible” PIP in order to “get rid of her.” Board Decision at 20. He found Ms. Harris “was not a cred- ible witness,” describing her as “evasive and insincere,” and unable to provide details to support her accusations of management misconduct. Id. at 20 n.26. By contrast, the Administrative Judge repeatedly found Ms. Primeaux’s and Mr. Girod’s testimony credible. Id. at 8 n.11, 15, 18, 21–22. Based on their testimony and supporting docu- ments in the record, he rejected Ms. Harris’s assertions of pretext. Id. at 21. We must decline Ms. Harris’s request that we reweigh her testimony, already definitively re- jected as incredible, to overcome the substantial evidence supporting the agency’s decision to place her on a PIP. See Bieber, 287 F.3d at 1364 (noting that it is not the function of an appellate court to “re-weigh conflicting evidence”). Finally, as for the agency’s actions during her PIP, Ms. Harris raises the following arguments to show she was denied a meaningful opportunity to improve: (1) Ms. Pri- meaux’s stated reason for requesting the COOP Resource Analysis Project—to justify adding staff—was belied by her recent reassignment of two staffers away from the COOP branch; (2) Ms. Primeaux’s criticism of Ms. Harris’s execu- tive summary was pretextual because she had previously submitted a “similar executive summary” to Ms. Primeaux and received no negative feedback; (3) she did not fail to follow directions by changing an established calibration rating decision for Mr. Holland, since Mr. Girod’s notes re- flect only a tentative rating decision; (4) Mr. Brown’s inter- view with her, purportedly to investigate Mr. Holland’s behavior, was simply another opportunity to “provide pa- perwork support for [her] predetermined termination”; and (5) she did collaborate with Ms. Clancy to submit her staff’s performance review narratives but was obstructed by the faulty co-planner function in the review system. Case: 19-1676 Document: 53 Page: 23 Filed: 08/25/2020
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Again, all of these arguments are largely based on Ms. Harris’s subjective views of the situation, which the Administrative Judge reasonably rejected for the reasons just discussed for the pre-PIP events. And the documen- tary evidence Ms. Harris cites in addition is insufficient to show that the Administrative Judge’s findings lacked sup- port. First, Ms. Harris points to Mr. Girod’s handwritten notes from the October 23, 2017, COOP branch staff per- formance rating calibration meeting. The notes regarding Mr. Holland’s evaluation begin with the heading “Calibra- tion of Vince; as of now” and reflect an Improvement Re- quired level for the Achieving Results in Occupation critical element. J.A. 274. Ms. Harris insists that these notes are irreconcilable with Ms. Primeaux’s and Mr. Girod’s testimony (also reflected in the proposed notice of removal) that the group agreed to give Mr. Holland that rating—and show that her managers misrepresented the calibration meeting. But the “as of now” notation does not carry the weight Ms. Harris ascribes to it. Of course, one might reasonably conclude, as Ms. Harris does, that the phrase signifies lack of solid agreement. And the record contains emails from Ms. Harris one week after the cali- bration meeting saying that, at the meeting, she had disa- greed with giving Mr. Holland a low performance rating. See, e.g., J.A. 284. But the record also contains reply emails from Ms. Primeaux stating that Ms. Harris did not disa- gree with giving Mr. Holland an Improvement Required rating and stating in clear terms that “he is deserving of the lower rating.” J.A. 286. These emails, combined with Ms. Primeaux’s and Mr. Girod’s consistent testimony, pro- vide ample support for the Administrative Judge to find that Ms. Harris failed to support OSO management initia- tives by refusing to convey Mr. Holland’s performance de- ficiencies as originally agreed, and later directed. See Board Decision at 15–16. Case: 19-1676 Document: 53 Page: 24 Filed: 08/25/2020
Second, there also exists documentary evidence sup- porting aspects of Ms. Harris’s version of why her staff ap- praisals did not include Ms. Clancy’s feedback. Various emails indicate that the review system’s “co-planner fea- ture” was not working and Ms. Harris was confused about how to combine Ms. Clancy’s feedback with her own. See, e.g., J.A. 313, 324. But, again, the existence of some evi- dence supporting Ms. Harris’s position does not demon- strate a lack of evidence supporting the Administrative Judge’s contrary conclusions. Rather, the record otherwise supports almost entirely the agency’s position that Ms. Harris repeatedly avoided and delayed following Ms. Primeaux’s increasingly clear explanations of how the combined appraisals were to be submitted. See, e.g., J.A. 310, 324, 326, 328. In sum, none of the agency’s ac- tions during the PIP amount to sufficient evidence of pre- text to call into question the Administrative Judge’s well- supported conclusion that Ms. Harris received a meaning- ful opportunity to improve her performance. III We have considered Ms. Harris’s remaining arguments and find them unpersuasive. The record supports the Ad- ministrative Judge’s determination that the agency sub- stantiated its chapter 43 removal, despite Ms. Harris’s claims of pretext. We therefore affirm the Board’s decision. AFFIRMED