Filed: Aug. 07, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HAYS C. HUSSEY, DOCKET NUMBER Appellant, DA-0432-13-0237-I-1 v. DEPARTMENT OF AGRICULTURE, DATE: August 7, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Hays C. Hussey, Mandeville, Louisiana, pro se. Sandy S. Francois and Thomas E. Dunn, New Orleans, Louisiana, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the i
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HAYS C. HUSSEY, DOCKET NUMBER Appellant, DA-0432-13-0237-I-1 v. DEPARTMENT OF AGRICULTURE, DATE: August 7, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Hays C. Hussey, Mandeville, Louisiana, pro se. Sandy S. Francois and Thomas E. Dunn, New Orleans, Louisiana, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the in..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAYS C. HUSSEY, DOCKET NUMBER
Appellant, DA-0432-13-0237-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 7, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Hays C. Hussey, Mandeville, Louisiana, pro se.
Sandy S. Francois and Thomas E. Dunn, New Orleans, Louisiana, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal decision for unacceptable performance. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant held the position of Information Technology (IT) Specialist,
GS-12, with the agency’s National Finance Center, Information Technology
Division. Initial Appeal File (IAF), Tab 5 at 9. In October 2012, the agency
informed the appellant that it found his performance to be unacceptable in three
performance elements and placed him on a 60-day performance improvement plan
(PIP). 2 Id. at 65-70, 83-88. The agency identified the three critical elements as:
(1) mission accomplishment, (2) security and continuity of operations, and
(3) communications. Id. at 65-68. During the PIP, the appellant met weekly with
his supervisor to review his progress. Id. at 45. The agency determined that the
appellant did not successfully complete the PIP and continued to perform at an
unacceptable level on two performance elements, mission accomplishment and
communications, and proposed his removal. Id. at 45, 56. The deciding official
2
The agency reissued the PIP to the appellant 11 days after the first PIP document was
issued due to errors in the original documentation. Id. at 65-70, 83-88.
3
sustained the decision to remove the appellant for unacceptable performance. Id.
at 10.
¶3 The appellant filed a Board appeal challenging his removal, alleging that
the agency interfered with the training for his position. IAF, Tab 1 at 4, 6. The
appellant claimed harmful error and retaliation for his prior Board and equal
employment opportunity (EEO) activity. 3 Id. at 4-6. The administrative judge
conducted a hearing and issued an initial decision that affirmed the agency’s
removal action. IAF, Tab 26, Initial Decision (ID) at 1. The administrative judge
also found that the agency’s action was not the result of reprisal for prior Board
and EEO activity or harmful error. ID at 19.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The appellant restates his arguments that his removal was in
reprisal for his prior Board activity and that the agency interfered with his
performance so he could not complete his duties. Id. at 1-2; IAF, Tab 1 at 6. The
agency has responded in opposition to the appellant’s petition for review. PFR
File, Tab 3.
The agency’s performance standards were approved by the Office of Personnel
Management (OPM), were valid, and communicated to the appellant, and the
appellant was informed that his performance was deficient in at least one
critical element.
¶5 To prevail in an appeal of a performance-based removal under chapter 43,
the agency must establish by substantial evidence that: (1) OPM approved its
performance appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
the position; (3) the appellant’s performance standards are valid under 5 U.S.C.
3
The appellant further alleged a failure to restore/reemploy/reinstate or improper
restoration/reemployment/reinstatement. IAF, Tab 1 at 4. During a subsequent
conference call, the appellant stated he did not have a compensable injury and was not
appealing a failure to restore/reemploy/reinstate or improper restoration/
reemployment/reinstatement. IAF, Tab 17 at 1 n.1.
4
§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of his
performance during the appraisal period and gave him a reasonable opportunity to
demonstrate acceptable performance; and (5) the appellant’s performance
remained unacceptable in one or more of the critical elements for which he was
provided an opportunity to demonstrate acceptable performance. Lee v.
Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). Substantial
evidence is the degree of relevant evidence that a reasonable person, considering
the record as a whole, might accept as adequate to support a conclusion, even
though other reasonable persons might disagree. 5 C.F.R. § 1201.56(c)(1). If the
action is supported by substantial evidence, the Board will sustain the action
unless the appellant shows by a preponderance of evidence that: (1) the agency
committed harmful procedural error in its decision; (2) the decision was based on
a prohibited personnel practice under 5 U.S.C. § 2302(b); or (3) the decision was
not in accordance with law. Lee, 115 M.S.P.R. 533, ¶ 6.
¶6 The administrative judge found that OPM approved the agency’s
performance management system, that the performance standards were valid and
communicated to the appellant, and that the appellant was informed that his
performance was deficient in at least one critical element. ID at 5, 7 and 13. The
appellant has not challenged any of these findings in his petition for review. 4 We
see no basis to disturb them on review and adopt them as the final decision of
the Board.
4
Though the appellant does not challenge the validity of the performance standards, he
does argue that his position was not that of a system administrator but instead a data
entry clerk. PFR File, Tab 1 at 2. However, the appellant repeatedly stated that he
needed training to learn to do his GS-12 IT Specialist job. IAF, Tab 5 at 15, 43. The
appellant’s union representative also stated during the appellant’s response to the
deciding official that the appellant was placed in one of the most technical jobs in the
group. Id. at 43. Based on the agency’s evidence, the appellant’s job was more
technical in nature than a data entry position as the appellant has alleged. Id. at 46-52.
5
The agency provided the appellant with a reasonable opportunity to improve his
performance, but his performance remained unacceptable in two elements.
¶7 The employee’s right to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013). In determining
whether the agency has afforded the appellant a reasonable opportunity to
demonstrate acceptable performance, relevant factors include the nature of the
duties and responsibilities of the appellant’s position, the performance
deficiencies involved, and the amount of time that is sufficient to enable the
appellant to demonstrate acceptable performance. Id. The Board has found that a
30-day PIP can satisfy an agency’s obligation to provide an employee with a
reasonable opportunity to demonstrate acceptable performance. Lee,
115 M.S.P.R. 533, ¶ 33. The agency issued the PIP for 60 days, and the
appellant’s supervisor met with him and reviewed his progress on a weekly basis
during the PIP. IAF, Tab 5 at 69.
¶8 The appellant argues that the agency resisted his return to work, which
resulted from the settlement of prior claims, by denying him resources and
refusing to support him in his new duties and that their actions interfered with his
performance. 5 PFR File, Tab 1 at 1-2; IAF, Tab 1 at 6. However, he provides no
evidence of what resources he was denied or how his supervisor prevented him
from performing his job. The appellant continues to argue in his petition for
review that the agency denied him training to enable him to learn the duties of his
new position. Id. at 1. The Board has found that an agency is not required to
provide an employee with any formal training as part of an opportunity to
5
The administrative judge properly advised the appellant that any issues the appellant
had regarding the agency’s compliance with a prior settlement agreement were to be
raised through a petition for enforcement of the prior Board appeal and not as part of
the present appeal. IAF, Tab 17 at 1-2 n.1; see Nease v. Department of the Army,
68 M.S.P.R. 365, 367 (1995) (the proper method to attack the validity of a settlement
agreement is a petition for review of the initial decision that dismissed the appeal based
on the settlement agreement).
6
improve under a PIP. Corbett v. Department of the Air Force, 59 M.S.P.R. 288,
290 (1993). However, if an agency promises an employee assistance during a PIP
and both fails to do so and otherwise prejudices the appellant or hinders his
chances to succeed, then it does not meet its burden of proving that it provided
the employee with an opportunity to improve. Id. Here, the appellant alleges that
the agency refused to provide him training to learn his new position. PFR File,
Tab 1 at 1. However, the appellant’s supervisor testified that the appellant had
the opportunity to receive on-the-job training from a former coworker for
approximately nine months to learn to do the job prior to being placed on the PIP.
Hearing Compact Diskette (HCD). The supervisor testified that no IT Specialists
received offsite training during the appellant’s time in the work group due to a
limited training budget. Id. The appellant attempted to challenge the testimony
at the hearing, stating that he had seen training materials as evidence that others
had received outside training. Id. Yet he provided no documentary evidence of
offsite training materials and was unable to state whether the training occurred
during this same time frame or at another point in time. Therefore, we find the
agency was under no obligation to provide outside training to the appellant during
his PIP.
¶9 Where, as here, an appellant’s performance was unacceptable on one or
more, but not all, components of a critical element, the agency must show by
substantial evidence that the appellant’s performance warranted an unacceptable
rating on the element as a whole. Adkins v. Department of Housing & Urban
Development, 781 F.2d 891, 895 (Fed. Cir. 1986). An important function of
performance standards is to ensure that employees understand both their agencies’
expectations of them and the consequences of their failure to meet these
expectations. Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 628
(1984). The evidence presented by the agency thus should demonstrate that the
appellant knew or should have known the significance of the component or
components at issue, in addition to demonstrating that the appellant’s deficiencies
7
are significant enough to justify the action the agency has taken. Id. at 628-29.
The evidence may include a showing of the importance of the component or
components in relation to the duties and responsibilities with which the critical
element as a whole is concerned. Id. at 629.
¶10 Here, we find the appellant was aware of the significance of the components
at issue. The agency’s PIP letter informed the appellant of the specific
deficiencies in each critical element, using the language from the performance
standard. IAF, Tab 5 at 65-68. The agency’s PIP letter only references
components of the performance standard where the agency found deficiencies.
Id. The PIP letter notified the appellant that his performance was unsatisfactory
in the three elements. Id. at 65. The agency also notified the appellant of the
significance of these components when it informed him that if he did not
successfully complete the PIP he would be demoted or removed from his position.
Id. at 70. Hence, we find that the appellant was sufficiently notified that his
continued unsatisfactory performance in these components of the performance
standard would result in an unacceptable rating for the critical element. See, e.g.,
Smallwood v. Department of the Navy, 52 M.S.P.R. 678, 683-84 (1992) (finding
that the agency properly notified the appellant at the beginning of the PIP that
unacceptable performance for one component of the performance rating would
warrant a rating of unacceptable for the element as a whole and that he could be
removed if his performance was not at a minimally acceptable level).
¶11 The agency met its burden of proving by substantial evidence that the
appellant’s performance was unacceptable for the critical element of mission
accomplishment. Specifically, the PIP identified, among the appellant’s
deficiencies in this element, his inability to complete tasks accurately or on time.
IAF, Tab 5 at 65-67. The appellant’s supervisor testified at the hearing about the
role of the appellant’s department and the National Finance Center, which
processes payroll for various military and civilian agencies. HCD. The
appellant’s supervisor also commented on the need for accuracy to avoid any
8
misdelivery of personally identifiable information. IAF, Tab 5 at 46. The agency
provided multiple examples of assignments not completed in a timely or proper
fashion relating to the critical element of mission accomplishment. Id. at 46-52.
The appellant’s supervisor noted that for the daily routine monitoring task, the
appellant was timely in the completion of his duties only 13 of the 35 days of the
PIP. Id. at 46. The appellant’s response to this task was that there was
“mischief” occurring, that his reports were being blocked, and that other staff
could not identify which reports were blocked. Id. at 18, 42. The appellant did
not complete tasks assigned during the PIP, such as task ten, where he was
directed to conduct an analysis and submit recommendations based on a vendor
recommendation. Id. at 52. The appellant’s response did not address the vendor
recommendation or follow his supervisor’s instructions, advising only that the
analysis was not necessary. Id. However, the appellant himself had raised the
issue based on high system utilization. Id.
¶12 The agency also demonstrated by substantial evidence the appellant’s
unacceptable performance for the critical element of communications. During the
PIP, the appellant was involved in two incidents that led to management
intervention. IAF, Tab 5 at 53-54. Both incidents involved allegations of the
appellant seeking assistance by asking coworkers to cover for him or assist him
because he believed he was going to be terminated. Id. at 176-78. Clearly these
incidents do not comport with the components of the performance standard that
focus on appropriate workplace communications, resolving disputes with proper
conflict resolution tools, and participating as a team player to accomplish the
organization’s mission. Id. at 53. The appellant’s PIP advised him that these
standards were all part of the critical element of communication. Id. at 68.
¶13 The appellant alleges that the agency interfered with his ability to
communicate with his coworkers. PFR File, Tab 1 at 1. However, the only
evidence in the record of the agency limiting the appellant’s communications was
the incident involving the programming staff from another department. IAF,
9
Tab 5 at 53. The appellant’s supervisor had previously directed him to seek
information from this group by email, yet the appellant went into the work area.
Id. at 81, 176. These visits resulted in an email from that group asking
management to stop sending over the appellant. Id. at 81, 176. We do not find,
under the circumstances, that the agency interfered in the
appellant’s communications.
¶14 We find the agency proved that the appellant’s performance was
unacceptable in at least one critical element. As a result, the Board may not
mitigate the agency’s removal action unless the appellant demonstrates by
preponderant evidence that the agency committed harmful procedural error, the
decision was based on a prohibited personnel practice under 5 U.S.C. § 2302(b),
or the decision was not in accordance with law. Lisiecki v. Merit Systems
Protection Board, 769 F.2d 1558, 1566-67 (Fed. Cir. 1985); 5 C.F.R.
§ 1201.56(b).
The appellant failed to prove his affirmative defenses of harmful error and
retaliation for EEO and MSPB activity.
¶15 The administrative judge found that the appellant did not prove his
affirmative defenses of harmful error and retaliation. ID at 15-19. The appellant
does not raise the harmful error claim in his petition for review. PFR File, Tab 1.
Because the appellant has not raised the claim on review and our review of the
initial decision finds no error with administrative judge’s finding, we adopt this
finding as the Board’s final decision on this issue.
¶16 In his petition for review, the appellant continues to allege that the agency’s
action was in reprisal for his prior Board activity. 6 Id. at 1. To prevail on a claim
6
The appellant also argues that the administrative judge improperly limited the
evidence he could present on appeal and did not permit him to provide evidence that the
agency’s management, human resources, and labor relations groups refused to hear his
complaints about his supervisor and chain of command. PFR File, Tab 1 at 1. The
appellant states he was directed to take his complaints through the EEO process. Id.
There is no evidence that the appellant filed an EEO complaint regarding his removal,
though he submitted evidence of other EEO complaints that he filed with the agency.
10
of illegal retaliation based on prior Board or EEO activity, the appellant has the
burden of showing that: (1) he engaged in a protected activity; (2) the accused
official knew of the protected activity; (3) the adverse action under review could
have been retaliation under the circumstances; and (4) there was a genuine nexus
between the alleged retaliation and the adverse action. New v. Department of
Veterans Affairs, 82 M.S.P.R. 609, ¶¶ 15-16 (1999). To establish a genuine nexus
between the protected activity and the adverse employment action, the appellant
must prove that the employment action was taken because of the protected
activity. Oulianova v. Pension Benefit Guaranty Corporation, 120 M.S.P.R. 22,
¶ 14 (2013). Where, as here, the record is complete on the issue of retaliation, the
Board’s inquiry proceeds to the ultimate question of whether, upon weighing the
evidence presented by both parties, the appellant has met his overall burden of
proving retaliation by preponderant evidence. Dwyer v. Department of Veterans
Affairs, 107 M.S.P.R. 632, ¶ 7 (2008).
¶17 As the administrative judge noted in her initial decision, it is undisputed
that the appellant engaged in protected activity, that his supervisors knew of the
protected activity, and that his removal could have been retaliatory under the
circumstances. ID at 17. To show retaliation, as the appellant attempts to do
here, based on circumstantial evidence, he must demonstrate a “convincing
mosaic” of retaliation against him. Agbaniyaka v. Department of the Treasury,
115 M.S.P.R. 130, ¶ 16 (2010), aff’d, 484 F. App’x 545 (2012). The appellant
provided no evidence that his supervisor or the deciding official had any reason to
retaliate based on his prior protected activity. The appellant also did not
IAF, Tab 19. The appellant alleges that his complaints were related to his reprisal
claim. PFR File, Tab 1 at 2. Therefore, agency management directed him to the same
venue where his other reprisal complaints were filed. See IAF, Tab 19 (record of other
EEO reprisal complaints filed by the appellant). We decline to find that the agency’s
direction to the appellant regarding where to file his EEO complaints is evidence of
reprisal. See 29 C.F.R. § 1614.102(b)(7) (requiring agencies to publicize the
availability of EEO counselors, and provide them with notice of the “necessity of
contacting a Counselor before filing a complaint”).
11
demonstrate that any similarly situated employee was treated differently.
However, the agency did prove the appellant’s performance was unacceptable in
the two critical elements, and the appellant has presented no evidence that this
legitimate, nondiscriminatory action for his removal was pretextual. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (setting forth
the parties’ shifting burdens in a Title VII case). Accordingly, we find that the
appellant did not prove his affirmative defense of retaliation for engaging in
protected activity, and we affirm the agency’s action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
12
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
