Kelly Lee v. Department of Veterans Affairs
2022 MSPB 11
MSPB2022Background
- Appellant (Program Support Assistant) was placed on a PIP and then removed by the VA for unacceptable performance in the Productivity critical element; she stipulated her performance during the PIP was unacceptable and that standards were valid and communicated.
- The Board hearing focused solely on whether the appellant was given a reasonable opportunity to improve during the PIP.
- The administrative judge ordered witness sequestration for a telephonic hearing; appellant later alleged the agency violated that order because multiple agency witnesses appeared to be in the same conference room while testifying.
- Appellant moved to strike agency testimony, enter default, and preserve conference-room surveillance and device records; the agency submitted affidavits denying any sequestration violation.
- The administrative judge denied the sanctions and preservation requests after reviewing affidavits and the hearing recording; the Board upheld that discretion on review.
- While the petition was pending, the Federal Circuit decided Santos v. NASA, holding an agency must prove pre‑PIP unacceptable performance; the Board remanded for further proceedings under Santos because the parties had not addressed that element below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the agency violated the sequestration order and sanctions (strike testimony/default) were warranted | Lee argued multiple agency witnesses were present together during testimony, violating sequestration and warranting sanctions | VA denied violation and submitted affidavits that no non-testifying witnesses were present | AJ did not abuse discretion in denying sanctions; she credited agency affidavits and hearing recording over appellant’s perceived‑voice affidavit |
| Whether AJ abused discretion by denying a hearing on the sanctions motion and by refusing preservation relief | Lee argued AJ should have held an evidentiary hearing and ordered preservation of surveillance and device records | VA argued AJ properly resolved the dispute on the written submissions and affidavits | No abuse of discretion: AJ was not required to hold an additional hearing and properly weighed submissions; denial of preservation relief not an abuse |
| Whether the agency met its burden under chapter 43 absent proof of pre‑PIP unacceptable performance | Lee did not challenge PIP‑period unacceptability but relied on Board precedent that pre‑PIP performance is not considered | VA relied on the Board’s then-prevailing standard that pre‑PIP performance need not be shown | Board applied Santos and remanded: under Santos, agency must prove performance was unacceptable before the PIP as well as during it |
| Applicability of VA Accountability Act as an alternative removal procedure | Lee sought traditional chapter 43 adjudication; appellant requested remand or default if evidence destroyed | VA referenced expedited VA Accountability Act as still in force | Board held VA Accountability Act cannot be applied to performance that occurred before its enactment; removal must be adjudicated under chapter 43 on remand |
Key Cases Cited
- Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021) (agency must justify institution of a PIP by showing pre‑PIP unacceptable performance)
- Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (U.S. 1995) (new legal standards apply to cases pending on review)
- Sayers v. Department of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020) (VA Accountability Act does not apply retroactively to pre‑enactment conduct)
- Fairall v. Veterans Administration, 844 F.2d 775 (Fed. Cir. 1987) (decisions of the Federal Circuit are binding on the Board)