Background
Kathryn Walker worked as a Transportation Specialist for the Department of the Army at Fort Gordon, Georgia. After her supervisor rated her performance “Unacceptable” on all seven performance elements and placed her on a 90-day performance improvement plan, the Army denied her scheduled within-grade salary increase in December 2024. Her second-line supervisor later denied reconsideration, finding that she had not reached an acceptable level of competence.
Walker appealed to the Merit Systems Protection Board. She argued that the denial was retaliation for an August 2023 complaint to the Office of Special Counsel and that the Army committed harmful procedural error by failing to advise her of reconsideration rights and by allegedly failing to provide independent reconsideration. An administrative judge affirmed the Army’s action, and the decision became final after the Board issued a lack-of-quorum order.
The Court’s Holding
The Federal Circuit affirmed in a nonprecedential per curiam opinion. It held that substantial evidence supported the Board’s determination that Walker was not performing at an acceptable level of competence, as required for a within-grade increase under 5 U.S.C. § 5335(a). The record included contemporaneous performance documents and sworn declarations from Walker’s first- and second-line supervisors, and the court declined to reweigh that evidence.
The court also rejected Walker’s challenge to the allocation of proof on her affirmative defenses. Although Walker established a prima facie case that her protected Office of Special Counsel complaint contributed to the personnel action, the Army proved by clear and convincing evidence that it would have denied the increase even without that protected activity. The Board also properly required Walker to prove that any procedural error caused substantial harm or prejudice, and its rejection of that defense presented no reversible error.
Key Takeaways
- A General Schedule employee must have a most recent performance rating of at least “Fully Successful,” or its equivalent, to qualify for a within-grade increase.
- An agency may defeat a prima facie whistleblower-retaliation defense by proving clearly and convincingly that it would have taken the same personnel action absent the protected activity.
- An employee asserting harmful procedural error before the MSPB bears the burden of showing substantial harm or prejudice to the employee’s rights.
Why It Matters
The decision illustrates the evidentiary framework governing MSPB review of denied within-grade increases and the Federal Circuit’s limited role when substantial evidence supports the Board’s factual findings. Contemporaneous performance records and supervisor declarations can sustain an agency’s determination that an employee failed to perform at an acceptable level of competence.
It also confirms that establishing protected activity and a contributing factor does not end the whistleblower analysis: an agency can still prevail by satisfying its clear-and-convincing-evidence burden. Because the disposition is nonprecedential, however, it does not bind future Federal Circuit panels.