As the FELTG newsletter reader pointed out, the Merit Systems Protection Board (MSPB) is currently down a member. So what happens if the two remaining members can’t agree on the outcome of a Petition for Review (PFR)?

It’s a great question.

And here’s our answer.

If this happens, and the Board issues what is known as a split decision, the administrative judge’s (AJ) decision becomes the Board’s final, nonprecedential decision. It’s fairly rare to see a split decision, but two were issued during the first week of September. Let’s take a look at one.

The facts of the case are described in the initial decision, Wilber v. DOD, DC-0432-22-0097-I-1 (Mar. 18, 2022). The agency put the appellant, a GS-13 Accountant, on a 30-day PIP after informing him he was performing at an unacceptable level on two critical elements in his performance plan. Because of the appellant’s absences during the PIP, the agency extended the PIP another six days. According to the initial decision, the agency “established that the appellant’s performance was unacceptable prior to and during his placement on a PIP by the substantial evidence standard.” Id. at 40.

Still, the AJ found the agency did NOT provide the appellant with a reasonable opportunity to demonstrate acceptable performance. Several months prior to the PIP, during a performance feedback meeting with his supervisor, the appellant told the supervisor he had a learning disability that contributed to his performance issues. The supervisor “reached out to HR to meet any requirements to address the appellant’s learning disability.” Sounds good so far, right?

The initial decision goes into a lengthy discussion about the appellant’s raising of other medical issues and the supervisor’s reactions, including that he “was still waiting for the appellant’s RA paperwork.” Id. at 44. Uh-oh.

According to the AJ:

[I]t does not appear that a reasonable person, considering the record as a whole, might accept that 17 work-day PIP period, and particularly one that the employee lacked the RA tools he need to perform his duties, is a sufficient amount of time to expect the appellant to correct the above deficiencies, or for the agency to make a determination that he would not.

The agency in this case has not cited to any case law in which the Board or the courts have previously held that a 17 work-day PIP period (particularly where the employee is without the tools he needed to perform his duties pursuant to a RA request), on its face, would ever be a sufficient amount of time to afford an employee the required “reasonable opportunity to improve,” and my extensive research on this issue has produced none.

Id. at 49.

Longtime FELTG students may recall class discussions of a Board case where a 17-day PIP period was found to be acceptable: Bare v. DHHS, 30 MSPR 684 (1986). Whether this did not come up in the AJ’s research, or the facts in Bare were different enough to distinguish the case, we may never know.

Because the Board members disagreed on the outcome in Wilber (with no discussion in the case about why), the AJ’s decision stands and the employee remains reinstated. Wilber v. DOD, DC-0432-22-0097-I-1 (Sept. 7, 2023)(NP).

If you’re interested in reading the (very strong) opinions of the Board members on another recent split decision involving a misconduct-based removal, check out Brinson v. Navy, DC-0752-14-1129-B-1 (Sept. 8, 2023).

We’ll be discussing these tricky topics and much more during the upcoming brand-new class Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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