Harris v. SEC, 972 F.3d 1307

Background

Tawana Harris was Branch Chief of the SEC’s COOP branch (2014–2018). After performance problems during the 2017 appraisal period she was placed on a 90‑day PIP on October 2, 2017.
The PIP required improvement on two critical elements: Achieving Results in Occupation and Teamwork and Collaboration, listing 15 specific improvement requirements.
During the PIP Harris submitted an Excel-based COOP Resource Analysis with errors and missing numeric estimates; produced an executive summary deemed inadequate; uploaded incomplete staff performance narratives and omitted co-planner feedback; and did not provide requested documents to an investigator (Brown).
After the PIP ended Harris received a proposed removal charging multiple failures to follow management instruction, lack of technical proficiency, and failure to support management initiatives; the SEC removed her effective immediately.
The MSPB upheld the removal, finding substantial evidence supported the Chapter 43 action and rejecting Harris’s discrimination/retaliation defenses; Harris appealed to the Federal Circuit but waived pursuing the discrimination claims here.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harris was warned of inadequacies during the appraisal period	Harris: PIP was issued after the appraisal period ended, so she was not warned "during" the appraisal period per Lovshin	Gov: No rule requires warning before a PIP; the PIP notice may itself serve as the warning for deficiencies occurring in that appraisal period	Held: Warning satisfied. PIP notice related to deficiencies in the 2017 period; regulations permit notification anytime during the appraisal cycle (warning need only relate to that appraisal period).
Whether the PIP afforded a meaningful opportunity to improve	Harris: PIP standards (deadlines, Excel requirements, scope) were unreasonable and unattainable; agency predetermination and pretext	Gov: PIP requirements were objective and reasonable; Harris’s testimony contradicted documentary evidence showing opportunity and support	Held: Held for Government. Substantial evidence supports that the PIP was reasonable and Harris had a meaningful opportunity to improve; credibility determinations supported agency view.
Whether pretext/predetermination arguments (and jurisdiction) defeat the removal	Harris: Agency manufactured PIP reasons and predetermined removal; these show pretext	Gov: Mixed‑case jurisdictional concern and waiver of discrimination claims mean pretext arguments tied to discrimination are not before this court	Held: Court retained jurisdiction because Harris filed a Form 10 abandoning discrimination claims; she may press non‑discrimination pretext arguments, but the record does not show pretext.
Whether the agency’s Chapter 43 removal is supported by substantial evidence	Harris: Agency failed to prove the charged instances; evidence showed system errors and cooperation problems, not unacceptable performance	Gov: Multiple documented failures to meet PIP requirements and management instructions justify removal under Chapter 43	Held: Affirmed. The Board’s factual findings are supported by substantial evidence and removal under Chapter 43 was proper.

Key Cases Cited

Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558 (Fed. Cir.) (chapter 43 standards and deference to agency performance judgments)
Martin v. F.A.A., 795 F.2d 995 (Fed. Cir.) (agency may remove for unacceptable performance in a single critical element if procedures satisfied)
Lovshin v. Dep’t of the Navy, 767 F.2d 826 (Fed. Cir.) (chapter 43 notice/warning and procedural prerequisites for removal)
Eibel v. Dep’t of the Navy, 857 F.2d 1439 (Fed. Cir.) (Chapter 43 removal is subject to a more limited review standard)
Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017) (mixed‑case doctrine and appropriate forum for discrimination claims)
Sayers v. Dep’t of Veterans Affs., 954 F.3d 1370 (Fed. Cir.) (distinction between Chapter 43 and Chapter 75 removals)
Bieber v. Dep’t of the Army, 287 F.3d 1358 (Fed. Cir.) (deference to administrative judge credibility determinations)
Adamsen v. Dep’t of Agriculture, 563 F.3d 1326 (Fed. Cir.) (questioning removal based on failure to use particular tools, but tied to prior plan requirements)
Diggs v. Dep’t of Hous. & Urban Dev., 670 F.3d 1353 (Fed. Cir.) (waiver of discrimination claims converts mixed case for appellate jurisdiction)
Higgins v. Dep’t of Veterans Affs., 955 F.3d 1347 (Fed. Cir.) (appellate jurisdiction where petitioner abandoned discrimination claims)