Chenshiang Lin v. Department of the Air Force
2023 MSPB 2
MSPB2023Background
- Appellant Chenshiang Lin was a Senior General Engineer (DR-III) at AFRL covered by the Lab Demonstration Project’s contribution-based compensation system (CCS), which rates four factors (Problem Solving; Communication; Technology Management; Teamwork & Leadership) to compute an overall contribution score.
- Lin was placed on a 120-day Contribution Improvement Plan (CIP) in January 2013 after a 2012 appraisal showed an overall contribution below his expected 3.05 level; the agency concluded he satisfactorily completed the CIP in September 2013 but retained a 2-year period during which deterioration could support removal.
- The agency’s October 2013–September 2014 appraisal again rated Lin below expected contribution (overall 2.73) and removed him effective March 4, 2015 for failure to demonstrate adequate contribution within two years of the CIP.
- An administrative judge affirmed the removal applying chapter 43–style standards adapted to the Lab Demonstration Project; Lin appealed to the full Board.
- The Board granted review, vacated the initial decision, and remanded because (1) Federal Circuit precedent in Santos requires the agency to prove the CIP was justified by pre‑CIP unacceptable performance, (2) the record lacked findings on whether the CIP (Jan–May 2013) afforded Lin an adequate opportunity to improve, and (3) the affirmative defenses (age discrimination and EEO reprisal) require reconsideration under clarified standards (Pridgen) and in light of pre‑CIP performance.
- Because the prior administrative judge is no longer employed, the Board directed further evidence/argument and, if appropriate, a supplemental hearing so credibility and factual issues can be reassessed on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency met its burden to prove a lawful contribution-based removal under the Lab Demonstration Project (including pre‑CIP justification) | Lin contends the agency failed to justify the CIP and thus cannot rely on post‑CIP ratings to remove him | Agency contends demonstration‑project procedures and prior CIP completion support removal based on subsequent inadequate contribution | Board: Agency must prove CIP was justified by pre‑CIP inadequate contribution per Santos; remand required because parties did not address this below |
| Whether the CIP provided an adequate opportunity to improve | Lin asserts the CIP period (Jan–May 2013) did not provide necessary training/support and language accommodations; thus it was not a reasonable opportunity | Agency contends the CIP satisfied procedural requirements and Lin completed it satisfactorily | Board: Remand for factfinding on adequacy of the CIP (evaluate CIP period itself, not the later appraisal period); supplemental hearing as needed |
| Whether chapter 43 standards (OPM approval, critical elements) fully apply to an OPM‑approved demonstration project | Lin implicitly relied on chapter 43 standards in challenging the removal | Agency relied on Lab Demonstration Project provisions and argued modified chapter 43 standards apply | Board: Chapter 43 standards are generally applicable as adapted to CCS; OPM approval element not required here (harmless error) and chapter 43 elements modified where inconsistent with CCS |
| Whether Lin’s age‑discrimination and EEO‑reprisal defenses were proven under current standards | Lin alleges age discrimination and reprisal; argues pre‑CIP performance and assignment practices support defenses | Agency maintains removal was based on legitimate contribution deficiencies, not discrimination/retaliation | Board: Affirmative defenses must be re‑adjudicated on remand applying Pridgen and Santos (pre‑CIP performance is relevant to defenses); parties may present new argument/evidence and the AJ must apply clarified evidentiary standards |
Key Cases Cited
- Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021) (agency must prove employee’s performance was unacceptable before instituting a PIP/PIP‑equivalent)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Guillebeau v. Department of the Navy, 362 F.3d 1329 (Fed. Cir. 2004) (analysis of removals under OPM demonstration projects)
- Thomas v. Department of Defense, [citation="117 F. App'x 722"] (Fed. Cir. 2004) (discussing prior Board precedents on PIPs and subsequent appellate treatment)