Filed: May 03, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LYNN M. DAVIS, DOCKET NUMBER Appellant, SF-0432-12-0763-M-1 v. SOCIAL SECURITY DATE: May 3, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Keith Goffney, Esquire, Los Angeles, California, for the appellant. Carolyn Beth Chen, Esquire, San Francisco, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 This case is before the Board after the U.S. District Court for the C
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LYNN M. DAVIS, DOCKET NUMBER Appellant, SF-0432-12-0763-M-1 v. SOCIAL SECURITY DATE: May 3, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Keith Goffney, Esquire, Los Angeles, California, for the appellant. Carolyn Beth Chen, Esquire, San Francisco, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 This case is before the Board after the U.S. District Court for the Ce..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNN M. DAVIS, DOCKET NUMBER
Appellant, SF-0432-12-0763-M-1
v.
SOCIAL SECURITY DATE: May 3, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Keith Goffney, Esquire, Los Angeles, California, for the appellant.
Carolyn Beth Chen, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This case is before the Board after the U.S. District Court for the Central
District of California granted the parties’ joint request to remand the case for
further consideration of the Board’s dismissal of the appellant’s petition for
review on timeliness grounds and/or consideration on the merits. For the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
following reasons, we FIND that the appellant’s petition for review of the
August 19, 2013 initial decision affirming her removal was timely filed,
VACATE our prior decision in this appeal, Davis v. Social Security
Administration, MSPB Docket No. SF-0432-12-0763-I-1, Final Order (Sept. 29,
2014), and DENY the petition on the merits. 2 Except as expressly MODIFIED by
this Final Order to incorporate the standards set out in the Board’s decision in
Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), address the
appellant’s argument that she was denied a reasonable opportunity to improve
because she was stressed as a result of her mother’s terminal illness and death,
and find that the agency met its burden of showing that the appellant’s
unacceptable performance in some components of two of her critical elements
warranted an unacceptable rating in the elements as a whole, we AFFIRM the
initial decision sustaining the appellant’s removal.
BACKGROUND
¶2 In an August 19, 2013 initial decision, the administrative judge affirmed the
appellant’s removal for unacceptable performance under 5 U.S.C. chapter 43.
MSPB Docket No. SF-0432-12-0763-I-1, Initial Appeal File (IAF), Tab 49, Initial
Decision (ID) at 30. The appellant filed a petition for review, which the Board
previously dismissed as untimely filed. Davis v. Social Security Administration,
MSPB Docket No. SF-0432-12-0763-I-1, Final Order (Sept. 29, 2014). The
2
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
interpretation of statute or regulation or the erroneous application of the law to the facts
of the case; the administrative 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. 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, 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.
3
appellant filed an appeal of the Board’s decision with the U.S. Court of Appeals
for the Federal Circuit. MSPB Docket No. SF-0432-12-0763-L-1, Litigation File
(LF), Tab 1. The case was transferred to the U.S. District Court for the Central
District of California, which, at the request of the parties, remanded the case to
the Board for further consideration of its dismissal of the petition for review on
timeliness grounds and/or consideration of the merits. LF, Tab 11; MSPB Docket
No. SF-0432-12-0763-M-1, Tab 2. We have re-examined the record and find that
the appellant’s petition for review was timely filed based on the appellant’s
counsel’s declaration under penalty of perjury that the petition was submitted to
Federal Express on January 27, 2014, the deadline granted by the Board. Petition
for Review (PFR) File, Tab 8, Tab 12 at 3; see 5 C.F.R. § 1201.4(l) (providing
that the date of filing by commercial delivery is the date the document was
delivered to the commercial delivery service). We therefore consider the
appellant’s petition for review on its merits.
¶3 The appellant was employed as a GS-6 Legal Assistant/Case Technician in
the agency’s Office of Disability Adjudication and Review until the agency
removed her for unacceptable performance. IAF, Tab 5, Volume (Vol.) 5 at 3 of
167. In approximately January 2011, the appellant’s supervisor began informally
addressing her performance deficiencies. Id., Vol. 2 at 130. From March 25
through April 29, 2011, he placed her on an informal pre-performance assessment
plan to review her work, provide additional training, and bring her work up to
standards. IAF, Tab 5, Vol. 2 at 130, Tab 31 at 31. From May 19 to June 19,
2011, the appellant’s supervisor placed her on a performance assistance plan
(PA), and from June 30 to November 15, 2011, he placed her on an opportunity to
perform successfully (OPS) plan. 3 IAF, Tab 5, Vol. 2 at 130-34, 137-48, Vol. 5
3
The agency’s performance assessment and communication system involves first
placing a poorly performing employee on a 30-day PA and, if the employee’s
performance does not improve, then placing the employee on an OPS plan for a period
of 120 days. IAF, Tab 5, Vol. 5, Subtab 2h at 8-10.
4
at 106 of 167. On May 18, 2012, after determining that the appellant’s
performance was unacceptable in the three critical elements of participation,
demonstrates job knowledge, and achieves business results, the appellant’s
supervisor issued her a notice of proposed removal. IAF, Tab 5, Vol. 5 at 36-55
of 167. After affording the appellant an opportunity to respond, the agency
removed the appellant, effective August 10, 2012. Id. at 3-27 of 167.
¶4 The appellant timely appealed her removal to the Board and asserted
that she was removed in retaliation for her prior equal employment opportunity
(EEO) activity. 4 IAF, Tab 1 at 5, Tab 31 at 4. After holding the appellant’s
requested hearing, the administrative judge issued an initial decision affirming
the agency’s removal action based on the appellant’s unacceptable performance
in all three critical elements. ID at 13-27. The administrative judge also found
that the appellant failed to prove her affirmative defense of retaliation for EEO
activity. ID at 28-30.
¶5 The appellant has filed a petition for review in which she asserts that the
administrative judge erred in finding that the agency afforded her a reasonable
opportunity to improve and that the agency proved that her performance was
unacceptable. 5 PFR File, Tab 10 at 16-32. The appellant also asserts that the
administrative judge erred in his analysis of her affirmative defense. Id. at 33-35.
4
The appellant also appealed the agency’s denial of her within-grade increase (WIGI)
during the OPS. IAF, Tab 1 at 2. The administrative judge found that the agency’s
denial of the WIGI was reasonable because the parties had stipulated that the pertinent
collective bargaining agreement prohibits an employee from receiving a WIGI if, as
here, she is on an OPS. ID at 4 n.1. The appellant does not challenge this finding on
review, and we discern no reason to disturb the administrative judge’s finding.
5
Attached to her petition, the appellant submits 100 pages of exhibits, which appear to
be largely from the record below. PFR File, Tab 10 at 37-136. Evidence that is already
a part of the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980). To the extent that these documents are not part of the record below, we
have not considered them because the appellant has not established that they were not
previously available despite her due diligence. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980).
5
The agency has responded to the appellant’s petition. PFR File, Tab 17. The
appellant has filed a reply. 6 PFR File, Tab 24.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In a performance-based action taken under chapter 43, an agency
must establish the following by substantial evidence: 7 (1) the Office of Personnel
Management approved its performance appraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
improve; and (5) the appellant’s performance remained unacceptable in at least
one critical element. White v. Department of Veterans Affairs, 120 M.S.P.R. 405,
¶ 5 (2013). 8
6
The agency filed its response on April 21, 2014, but the appellant did not file her
reply until June 2, 2014. PFR File, Tabs 17, 24. A reply to a response to a petition for
review must be filed within 10 days after the date of service of the response to the
petition for review. 5 C.F.R. § 1201.114(e). The date of service by mail is determined
by the postmark date. 5 C.F.R. § 1201.4(j), (l). The agency’s response, served on the
appellant via U.S. mail, was initially misaddressed, and on May 5, 2014, the agency
contacted the appellant’s attorney to inform him that it would re-serve its response via
U.S. mail. PFR File, Tab 21. The record does not reflect the postmark date, but the
appellant’s attorney contends that he received the agency’s response on May 15, 2014.
PFR File, Tab 22 at 2, Tab 25 at 4. On May 27, 2014, the appellant filed a motion for
an extension of time to file her reply due to the delay in receiving the agency’s
response, which was denied. PFR File, Tabs 22-23. Subsequently, the appellant filed a
motion to accept her reply as timely. PFR File, Tab 25. Under the particular
circumstances presented, we have considered the appellant’s reply in reaching our
decision in this matter. However, we find that the appellant’s reply, which largely
restates the arguments in her petition, does not affect the outcome.
7
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. § 1201.4(p).
8
The appellant does not dispute on review the administrative judge’s findings regarding
the first three requirements. Accordingly, we do not further address these criteria here.
6
The administrative judge properly found that the appellant was afforded a
reasonable opportunity to improve.
¶7 On review, the appellant contends that the administrative judge erred in
finding that the agency afforded her a reasonable opportunity to improve for
several reasons. 9 First, she asserts that, by failing to extend the OPS by 4 days to
account for her absences, the agency failed to comply with its personnel policies,
which require an OPS plan to last for a period of 120 days. PFR File, Tab 10
at 17-18. In support of her argument, the appellant submits, for the first time on
review, time and attendance documentation. Id. at 51-57. As
stated, supra n.5,
we decline to consider such evidence, which predates the close of record below
and has not been shown to have been previously unavailable. Avansino,
3 M.S.P.R. at 214. In any event, the record reflects that the agency provided the
appellant an adequate opportunity to demonstrate acceptable performance over
the course of approximately 5½ months. 10 IAF, Tab 5, Vol. 2 at 130-34, 137-48,
9
We decline to consider the appellant’s argument raised for the first time on review
that she was not informed as to what was required to demonstrate acceptable
performance because the benchmarks provided to her in the OPS plan were too broadly
worded and were not linked to particular critical elements. PFR File, Tab 10 at 31. She
has not shown that this new argument is based on previously unavailable evidence. See
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
10
To the extent the appellant, who is represented by the same counsel both below and
on review, is attempting to raise an affirmative defense of harmful procedural error
based on the agency’s failure to afford her a 120-day OPS, exclusive of any absences,
we decline to consider it because she has provided no explanation for her failure to
raise such a claim below. See Arndt v. Department of Transportation, 16 M.S.P.R. 221,
225 (1983) (stating that the Board will not review claims of affirmative defenses raised
for the first time on review if they are not supported by any new evidence that was
unavailable before the record closed below); Banks, 4 M.S.P.R. at 271 (declining to
consider a third claim of harmful procedural error submitted for the first time on review
where the appellant presented no new evidence that was not previously available when
the record closed that would justify consideration of the issue). We note that the
appellant attempted to raise a claim that the agency failed to consider extenuating
circumstances, including her medical condition during the OPS. IAF, Tab 31 at 6. The
administrative judge, however, construed this as a claim that the agency failed to meet
the elements of its performance-based action, not a claim of harmful error. IAF, Tab 33
at 4 n.1. Even if this could have been construed as a claim of harmful error, it is a
7
Vol. 5 at 106 of 167; see, e.g., Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 33 (2010) (finding a 60-day performance improvement plan
satisfied the agency’s obligation to provide the appellant a reasonable opportunity
to improve her performance); Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 101 (1989) (finding a 30-day performance
improvement plan was reasonable under the circumstances), aff’d, 899 F.2d 1228
(Fed. Cir. 1990) (Table).
¶8 The appellant also reiterates her testimony that her performance was
negatively affected during the OPS due to stress and constant worry as a result of
her mother’s terminal illness and death. PFR File, Tab 10 at 19. The initial
decision does not expressly address the appellant’s testimony on this issue;
however, it is undisputed that the OPS was extended 16 days to accommodate the
appellant’s absences from September 13-28, 2011, due to the death of her mother.
IAF, Tab 5, Vol. 5 at 106 of 167; ID at 12; PFR File, Tab 10 at 17. Although we
realize the appellant was in grief, she has not alleged that she suffered from any
disabling medical condition that required accommodation from the agency.
Absent a disability, the appellant’s assertions regarding her mental state do not
provide a basis for finding that she was denied an adequate opportunity to
improve her performance. See Thompson v. Department of the Navy, 84 F. App’x
61, 63 (Fed. Cir. 2003). 11 Thus, even considering such assertions, we find that
the agency established by substantial evidence that it afforded the appellant a
reasonable opportunity to improve.
¶9 Next, the appellant reiterates her arguments from below that the agency
denied her requests for training in electronic business processes (eBP), assigned
separate and distinct claim from the one the appellant now attempts to raise for the first
time on review.
11
The Board may choose to follow nonprecedential decisions of the Federal Circuit if,
as here, it finds the reasoning persuasive. E.g., Erlendson v. Department of Justice,
121 M.S.P.R. 441, ¶ 6 n.2 (2014).
8
her an ineffective mentor, and afforded her ineffective one-on-one training from
her supervisor, which constituted harassment under the guise of training. PFR
File, Tab 10 at 26-27. The administrative judge, however, considered such
arguments and found them unavailing. He found that, in addition to assigning the
appellant a mentor, two lead case technicians also were assigned to provide her
training. ID at 11. He further found that the appellant was provided a video on
demand regarding eBP and credited the testimony of the appellant’s second-level
supervisor that the appellant received more training than anyone else. ID at 11,
26. Finally, he found unavailing the appellant’s contentions that her supervisor
was harassing her instead of training her. ID at 10. We find that the appellant’s
arguments on review constitute mere disagreement with the administrative
judge’s explained findings, which are supported by the record, and they do not
provide a basis for reversal. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); see also Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶10 Finally, the appellant reiterates her argument from below that her supervisor
was predisposed to removing her and had been transferred to the office to harass
her and “systematically build a case to fire her.” PFR File, Tab 10 at 28. She
also contends that her first-level supervisor intended for her to fail the OPS. She
points to testimony of a former coworker, who was also supervised by the same
first-level supervisor, which she characterizes as establishing that her first-level
supervisor yelled at and disparaged her publicly, was overly demanding, treated
her poorly, and belittled her to the point of tears. Id.
¶11 Based on our review of the coworker’s testimony, it focused primarily on
her own interactions with the supervisor, her alleged forced resignation, her EEO
complaint, and her beliefs that the supervisor created a hostile work environment
and discriminated against older women in the office. Hearing Transcript (HT),
9
Vol. 2 at 448-59. The appellant has not raised affirmative defenses of age or sex
discrimination. 12 As to her observations of the appellant, the coworker testified
that her cubicle was near the appellant’s cubicle and she overheard the appellant’s
supervisor yelling at the appellant because he had trained her on certain things
repeatedly, but she still made the same mistakes. Id. at 460-62. She also testified
that she felt bad for the appellant and saw her almost in tears on at least one
occasion. Id. at 464. We discern no error by the administrative judge in failing
to mention this testimony, which we find of insufficient weight to affect the
outcome of the case. See Marques v. Department of Health & Human Services,
22 M.S.P.R. 129, 132 (1984) (stating that the administrative judge’s failure to
mention all of the evidence of record does not mean that she did not consider it in
reaching her decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶12 Moreover, the initial decision reflects that the administrative judge
considered and rejected the appellant’s argument that her supervisor was
predisposed to removing her. Specifically, he credited the testimony of the
appellant’s supervisors that the appellant’s first-level supervisor was transferred
to the office because he had requested an assignment closer to his home and did
not know anyone at the office when he arrived. ID at 10. The administrative
judge also credited testimony of the appellant’s first-level supervisor that he
reviewed all of his employees’ past performance evaluations and saw that
problems had been noted regarding the appellant’s performance, he himself had
noticed some of the same deficiencies in her work “almost immediately,” and
early on, one of the administrative law judges expressed concerns to him about
the appellant’s performance. ID at 10. Finally, the administrative judge credited
12
The appellant attempted to raise an affirmative defense of age discrimination during
the week of the hearing, but the administrative judge found such a claim to be untimely
because she had not raised it in her prehearing submissions. IAF, Tab 47. The
appellant does not challenge this ruling on review, and thus we see no reason to disturb
the administrative judge’s determination that the claim was untimely raised. The
appellant did not raise an affirmative defense of sex discrimination. IAF, Tabs 31, 33.
10
testimony of the appellant’s second-level supervisor that the appellant’s
performance difficulties had been noted long before the PA and OPS were
instituted and found that the record supported such a conclusion. ID at 26.
¶13 Accordingly, we agree with the administrative judge that the agency
afforded the appellant a reasonable opportunity to improve.
The administrative judge properly found that the agency proved that the
appellant’s performance was unacceptable.
¶14 We have considered the appellant’s arguments on review and find that none
of them are of sufficient weight to overturn the administrative judge’s finding
that her performance remained unacceptable in at least one critical element. We
agree with the administrative judge that the agency met its burden of proving by
substantial evidence that the appellant’s performance was unacceptable in the
critical element of demonstrates job knowledge, which required the appellant to
learn new material and apply it accurately while using appropriate technology and
automation tools as well as to provide clear, accurate oral and written information
and to complete accurate work products. ID at 16-20. We also agree with the
administrative judge that the agency met its burden of proving the appellant’s
performance was unacceptable in the critical element of achieves business results,
which required her to complete work assignments timely or as scheduled. 13 ID at
20-25.
13
We acknowledge that, as the appellant argues on review, PFR File, Tab 10 at 22,
many of the examples cited by the agency in support of the appellant’s unacceptable
performance in the critical element of participation are also cited in support of her
unacceptable performance in the critical elements of demonstrates job knowledge and
achieves business results. IAF, Tab 5, Vol. 5 at 11-22 of 167. However, to support its
removal under chapter 43, the agency need only prove the appellant’s performance was
unacceptable in a single critical element. 5 U.S.C. §§ 4301(3), 4303(a); Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013); Thompson v. Department of
the Navy, 89 M.S.P.R. 188, ¶ 5 (2001). Because we find that the agency proved that the
appellant’s performance was unacceptable in the critical elements of demonstrates job
knowledge and achieves business results, we need not address whether the agency
proved that her performance was unacceptable in the critical element of participation
via independent evidence or whether instances of poor performance can be used to find
11
¶15 The OPS identified the appellant’s performance deficiencies, including her
inability to accurately and timely perform the following tasks: encrypt a compact
disc without assistance, update matters in the case processing and management
system (CPMS), request updated records from sources and follow up using a daily
to-do list, close-out scheduled hearings in CPMS and e-view, add new documents
to the exhibit list, close cases in mail status, and create dismissals. IAF, Tab 5,
Vol. 2 at 145-47 of 167. The administrative judge found that the record reflected
numerous incidents during the OPS in which the appellant failed to perform such
tasks accurately and/or timely. ID at 13-25. The administrative judge also
credited testimony of the appellant’s mentor during the OPS and another lead
technician that the appellant closed about half of her cases with errors, repeatedly
made the same mistakes, and could not perform her job duties despite having
been given half of the normal caseload of a case technician during the OPS. ID
at 27.
¶16 Numerous emails during the OPS period corroborate the appellant’s
inability to accurately and/or timely perform such duties and reflect that often
such duties were instead completed by the appellant’s assigned mentor or
reassigned to another employee. IAF, Tab 5, Vols. 3-4, 6, 8. Further, as the
administrative judge noted, the appellant’s supervisor discussed such errors with
her during the OPS and memorialized their discussions in his weekly discussion
memos. ID at 20, 25; IAF, Tab 5, Vol. 1 at 80-138 of 167. Thus, we find that the
agency established that the appellant’s performance in the critical elements of
demonstrates job knowledge and achieves business results remained unacceptable
during the OPS period.
¶17 On review, the appellant points out that the agency only found that she
failed to meet some, not all, of the performance standards within each critical
element and asserts that it was an error for the agency not to discuss her
an employee’s performance unacceptable under more than one critical element.
See Towne, 120 M.S.P.R. 239, ¶ 29 n.12.
12
performance in the remaining performance standards. PFR File, Tab 10 at 31-32.
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. See Lee, 115 M.S.P.R. 533, ¶ 36. The evidence the agency
may submit to satisfy its burden of proof on this point includes evidence that the
employee knew or should have known the significance of the subelements at issue
and evidence showing the importance of the subelements in relation to the duties
and responsibilities with which the critical element as a whole is concerned. Id.
¶18 The administrative judge did not address whether the agency met its burden
in this regard. Addressing it now, we find that, regarding the critical elements of
demonstrates job knowledge and achieves business results, the agency provided
substantial evidence that the appellant was or should have been aware of the
significance of the subelements at issue. The record reflects that during the PA
and OPS, the appellant was reminded of the importance of using technology and
automation tools, i.e., eBP processes, to complete accurate work products in a
timely manner. The PA discussed her difficulty applying eBP processes timely
and correctly, which was necessary to complete the fundamental skills for the
case technician position. IAF, Tab 5, Vol. 2 at 132. It also informed her of her
difficulty closing cases timely and accurately. Id. at 133. During the PA, the
appellant’s supervisor reiterated to her the importance of closing cases in a timely
manner and double-checking her work to prevent incomplete or incorrect work
product. Id. at 138, 140. The appellant’s weekly performance discussions during
the OPS also reflect that she was repeatedly informed of the importance of timely
and accurately completing her work to prevent delaying claimants’ due process.
IAF, Tab 5, Vol. 1 at 116, 118, 121-22, 138, 154, 157 of 167. Thus, we find that
the administrative judge did not err in finding that the agency established by
substantial evidence that the appellant’s performance as a whole was
unsatisfactory in critical elements 3 and 4.
13
¶19 On review, the appellant asserts that the administrative judge failed to
consider her testimony regarding each example of her alleged deficient
performance, which she contends “formed a complete exculpation.” PFR File,
Tab 10 at 20. The administrative judge, however, considered the appellant’s
testimony and found that it amounted to a variety of arguments, including that she
caught the mistakes herself, disagreed that her work was untimely or that she was
responsible for performing a task, made inadvertent mistakes or errors, disagreed
with her supervisor as to how or when something should have been done, or
disagreed with her supervisor’s assessment of her performance. ID at 27. The
administrative judge’s failure to discuss each individual incident does not mean
that he did not consider them in reaching his decision. See Marques, 22 M.S.P.R.
at 132.
¶20 The appellant also asserts that the agency failed to meet its burden because
it failed to rebut her testimony disagreeing with the cases and examples her
supervisor cited as support for her unacceptable performance. PFR File, Tab 5
at 20-25. Even if the agency’s evidence regarding the errors the appellant
committed during the OPS is contradicted by her own testimony, the agency’s
burden of proof in this matter is by substantial evidence, which is only that
“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. § 1201.4(p). Thus, as the
administrative judge correctly found, to meet its burden, the agency is not
required to provide evidence that is more persuasive than that presented by the
appellant. ID at 27; see, e.g., Leonard v. Department of Defense, 82 M.S.P.R.
597, ¶ 5 (1999).
¶21 Finally, the appellant argues that the initial decision failed to meet the
requirements of Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,
589 (1980), in which the Board stated that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
14
credibility, and include the administrative judge’s legal reasoning and
conclusions of law. PFR File, Tab 10 at 23-24. We disagree. See Spithaler,
1 M.S.P.R. at 589. 14 We find that the appellant’s arguments on review constitute
mere disagreement with the administrative judge’s explained findings on the
issues, and we see no reason to reweigh the evidence or substitute our assessment
of the record evidence for that of the administrative judge in this appeal. See
Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359.
The administrative judge correctly found that the appellant failed to prove her
affirmative defense of retaliation.
¶22 If the action is supported by substantial evidence, the Board will sustain it
unless the appellant shows by a preponderance of the evidence 15 that (1) the
agency committed harmful procedural error in reaching 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. 5 U.S.C. § 7701(c)(2);
5 C.F.R. § 1201.56(c).
¶23 The appellant contends that the agency removed her in retaliation for her
protected EEO activity, which is a prohibited personnel practice under 5 U.S.C.
§ 2302(b). After the issuance of the initial decision in this matter, the Board
issued Savage, 122 M.S.P.R. 612, ¶¶ 35-51, clarifying the standards and
procedures governing its adjudication of claims under Title VII of the Civil
Rights Act of 1964 (codified in pertinent part at 42 U.S.C. § 2000e-16),
including, but not limited to, retaliation. The Board explained that, when an
appellant asserts an affirmative defense of discrimination or retaliation under
14
The appellant cites to Cranwill v. Department of Veterans Affairs, 52 M.S.P.R. 610,
616-17 (1992), in which the Board found that the administrative judge’s failure to
summarize the relevant evidence made it impossible to analyze whether the agency
proved its case by substantial evidence. PFR File, Tab 10 at 23. Here, in contrast, we
find that the record supports the administrative judge’s factual findings.
15
A preponderance of the evidence is that “degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
15
42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has
shown by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612,
¶ 51. Such a showing is sufficient to establish that the agency violated 42 U.S.C.
§ 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1). Savage, 122 M.S.P.R. 612, ¶ 51.
¶24 In making this showing, an appellant may rely on direct or circumstantial
evidence. Id., ¶¶ 42, 51. The Board described three general types of
circumstantial evidence upon which an appellant could rely: (1) a “convincing
mosaic” of discrimination or retaliation, i.e., suspicious timing, ambiguous oral or
written statements, behavior toward or comments directed at other employees in
the protected group, and other bits and pieces from which an inference of
discriminatory or retaliatory intent might be drawn; (2) comparator evidence; and
(3) evidence that the agency’s stated reason for its action is unworthy of belief, a
mere pretext for discrimination or retaliation. Id., ¶ 42.
¶25 If the appellant meets her burden, the Board will inquire whether the agency
has shown by preponderant evidence that it still would have taken the contested
action in the absence of the discriminatory or retaliatory motive. Id., ¶ 51. If the
Board finds that the agency has made that showing, then its violation of 42 U.S.C.
§ 2000e-16 will not require reversal of the action. Id.
¶26 Because the factual record is fully developed on the appellant’s affirmative
defense and we are not basing our finding on witness demeanor, we need not
remand this claim for further adjudication. As set forth below, we find that
applying the analytical framework in Savage does not change the result in this
case as to the appellant’s affirmative defense of EEO reprisal.
¶27 There is no dispute that the appellant participated in protected EEO activity,
the appellant’s supervisors were aware of her protected activity, and she was
removed. ID at 28-29. As the administrative judge found, the appellant
participated in the following EEO activity: (1) in 2007, she filed a grievance
16
regarding her nonselection for a senior case technician position, in which she
named her second-level supervisor; (2) in 2008, she filed an EEO complaint,
which she later amended to name her second-level supervisor; (3) on April 7,
2011, the appellant contacted an EEO counselor and subsequently, on or about
July 21, 2011, filed a formal complaint of discrimination regarding management,
including her first- and second-level supervisors, subjecting her to continuous
monitoring and scrutiny of her work; and (4) in November 2011, she filed an EEO
complaint regarding her 2011 performance rating and, subsequently, included her
proposed removal. ID at 28-29; IAF, Tab 5, Vol. 7 at 20-25 of 167, Tab 31
at 7-8, 63-80; IAF, Tab 1 at 55-84.
¶28 The administrative judge found that there was no nexus between the
appellant’s removal and her prior EEO activity; rather, the appellant’s placement
on the PA and subsequent removal for unacceptable performance were solely the
result of her longstanding performance deficiencies. 16 ID at 29-30. He reasoned
that it was clear from the record that the appellant’s supervisors believed that her
performance needed improvement before she filed her 2011 EEO complaints, 17
the errors her supervisors identified in her work during the OPS were consistent
with the errors identified before the improvement plans began, and also with the
kind of performance issues the appellant’s prior supervisors had noted. ID at 29.
He credited testimony of the appellant’s second-level supervisor that the
appellant’s performance problems became more obvious and extreme after eBP
was initiated in 2009. ID at 26. He also noted that a different supervisor
indicated on the appellant’s 2010 performance appraisal that she was “barely
16
We interpret the administrative judge’s finding that “the appellant has not in any
fashion established a genuine nexus,” ID at 29, as the same as a finding that the
appellant failed to meet her burden to prove that her protected activity was a
“motivating factor” in her removal. See Savage, 122 M.S.P.R. 612, ¶ 41.
17
Indeed, both of the appellant’s 2011 EEO complaints relate to actions taken by her
supervisor to address her performance problems. IAF, Tab 5, Vol. 7 at 23-25, 163-64
of 167; Tab 5, Vol. 5, Subtab 4; Tab 31 at 7-8.
17
meeting the requirements” of one critical element and that adjusting to changes in
work assignments and priorities was an area that needed improvement. Id. The
record supports a conclusion that the appellant’s performance deficiencies had
been noted for years and that her supervisors began taking progressive action
prior to her 2011 EEO complaints. IAF, Tab 48 at 13-55. Further, the appellant
acknowledges that, upon her first-level supervisor’s transfer to the office in
December 2010, he immediately began addressing her performance deficiencies
and later placed her on an informal pre-PA beginning March 25, 2011, prior to
her initiating her 2011 EEO complaints. 18 PFR File, Tab 10 at 28.
¶29 On review, the appellant asserts that the administrative judge erred in his
analysis by failing to consider her EEO activity in 2007 and 2008. PFR File,
Tab 10 at 33-34. However, it is undisputed that the appellant’s first-level
supervisor, who placed her on the PA and OPS and proposed her removal, did not
transfer to the office until December 2010, and was not involved or named in
either the 2007 grievance or 2008 EEO complaint. ID at 10. The administrative
judge credited the appellant’s first-level supervisor’s testimony regarding the
reasons why he placed the appellant on the performance plans. Id. Moreover, the
appellant’s first-level supervisor testified that no one in management ever
suggested or advised that he place the appellant on a performance plan or propose
her removal; rather, he did so independently based on his assessment of her work
performance. HT, Vol. 2 at 301. Therefore, we find that the appellant has not
shown by preponderant evidence that her prior EEO activity was a motivating
factor in the contested personnel action.
¶30 Accordingly, we affirm the administrative judge’s initial decision sustaining
the appellant’s removal for unacceptable performance under chapter 43.
18
As discussed, the administrative judge found unavailing the appellant’s argument that
her first-level supervisor was transferred to the office for the purpose of firing her.
ID at 10.
18
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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). 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
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 U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
19
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. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
