Harris v. Sec. & Exch. Comm'n

• Decision Date: 25 August 2020
• Docket Number: 2019-1676
• Citation: 972 F.3d 1307
• Parties: Tawana HARRIS, Petitioner v. SECURITIES AND EXCHANGE COMMISSION, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

972 F.3d 1307

Tawana HARRIS, Petitioner

v.SECURITIES AND EXCHANGE COMMISSION, Respondent

2019-1676

United States Court of Appeals, Federal Circuit.

Decided: August 25, 2020

David Branch, Law Office of David A. Branch, Washington, DC, argued for petitioner.

Mollie Lenore Finnan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented 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.

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 performance-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 Washington, 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, pursuant to chapter 43 of title 5. See 5 U.S.C. § 4303(a) (authorizing federal agencies to "remove an employee for unacceptable performance").

Chapter 43 governs the "Performance Appraisal" of federal agency employees, establishing standards for evaluating work performance and imposing sanctions of removal 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 "unacceptable 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 performance 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 communicated to the employee at the beginning of each appraisal period, 5 U.S.C. § 4302(b)(2) (2012),¹ which generally 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 employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance." 5 U.S.C. § 4302(b)(6) (2012). Agencies typically provide this opportunity to demonstrate acceptable performance by placing the underperforming employee on a Performance Improvement Plan, or PIP.

B

On October 13, 2016, Ms. Harris received her 2017 Performance 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 elements, 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 critical element progressed from "Unacceptable," to "Improvement 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. Harris to work directly under him in a non-supervisory capacity while the agency investigated accusations that one of 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 performed unacceptably over the last three months of the appraisal period in both the Achieving Results in Occupation and Teamwork and Collaboration critical elements. The notice described examples such as disregarding Ms. Primeaux's guidance in revising certain work products; coming 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—including telling Ms. Primeaux to copy her on all communications to her staff, and requesting that Ms. Primeaux send documents 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 Performance Improvement Requirements. Among the ten requirements 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 incorporate management feedback into [her] work product," and (2) on no more than two occasions could she "fail to demonstrate technical proficiency and expertise on COOP-related matters." J.A. 178. Of the five requirements for improved performance in the Teamwork and Collaboration critical element, the most relevant here is that on no more than two occasions could she "fail to appropriately engage and collaborate with" team members on COOP-related matters. J.A. 179. The PIP notice advised Ms. Harris that Ms. Primeaux would monitor her performance and provide guidance 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. Primeaux asked Ms. Harris to prepare a draft report of the COOP branch's core projects and the estimated time required 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 extension, 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 errors. Ms. Primeaux reviewed the draft with Ms. Harris, pointed out the deficiencies, and suggested using Excel formulas to ensure accuracy. Over the following weeks, Ms. Harris provided several revised versions of the spreadsheet, 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 Excel training although it was not required for this assignment. Ms. Primeaux ended up fixing the spreadsheet 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 completed in 2013. Ms. Primeaux found the summary unprofessionally 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 reports. On October 23, 2017, Ms. Harris met with Mr. Girod, Ms. Primeaux, and Vicki Clancy—who had temporarily 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. Harris'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.

Based on these behavioral concerns, Mr. Girod contacted 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 behavior. He introduced Mr. Brown to Ms. Harris, asking her to "work with [Mr. Brown] in providing...