Alphonso Bernard Clark v. Social Security Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALPHONSO BERNARD CLARK, DOCKET NUMBER

Appellant, DC-0432-13-0106-I-1

v.

SOCIAL SECURITY DATE: August 7, 2014

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marva Peace, Durham, North Carolina, for the appellant.

Sandra Stuart, Whiteville, North Carolina, for the appellant.

Amy Morelli, Natalie Liem, and Reginald V. Speegle, Esquire, Atlanta,

Georgia, 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 action taken pursuant to 5 U.S.C. § 4303.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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).

¶2 The appellant filed an appeal from the agency’s action removing him from

the position of Claims Representative, GS-0105-11, in the Supplemental Security

Income program at the Sanford, North Carolina office. Initial Appeal File (IAF),

Tab 1, Tab 10 at 32. The agency first found his performance deficient within a

year after his appointment at the GS-09 level. See IAF, Tab 11 at 14-15; Tab 13

at 36. He was placed on a performance assistance plan (PAP) on April 20, 2010.

IAF, Tab 11 at 15. His performance improved, and he was promoted to a GS-11

effective August 29, 2010. IAF, Tab 13 at 35. The appellant’s performance

deteriorated again by mid-year of the next rating period, and he was again placed

on a PAP, effective September 7, 2011. IAF, Tab 12 at 80-82. When his work

did not improve, see id. at 70, the agency placed him on a 120-day Opportunity to

Perform Successfully (OPS) plan, effective October 28, 2011, id. at 66-69. The

appellant requested a transfer to a different office. Id. at 65. The agency detailed

him to the Fayetteville, North Carolina office on December 3, 2011, where he was

assigned a new supervisor, the Fayetteville Operations Supervisor. Id. at 28-30.

3

He remained on the OPS plan in Fayetteville. Id. at 29. The Fayetteville

Operations Supervisor proposed his removal on April 10, 2012. IAF, Tab 10

at 45-79. He was removed for “failure to perform at the minimum level of

competence in two critical elements for his position: Demonstrates Job

Knowledge and Achieves Business Results.” Id. at 33.

¶3 The appellant had filed three separate equal employment opportunity (EEO)

complaints in 2011 and 2012. IAF, Tab 8 at 87. The Equal Employment

Opportunity Commission (EEOC) administrative judge consolidated the

complaints and dismissed them, allowing the appellant to appeal his removal

under mixed-case procedures. Id.; IAF, Tab 9 at 3-5. This appeal followed. IAF,

Tab 1.

¶4 On appeal, the appellant alleged the following affirmative defenses:

Harmful error and/or a violation of his due process rights; retaliation for prior

EEO activities; and discrimination based on disability, 2 race (African American),

color (black), age (49), and sex (male). 3 IAF, Tab 36 at 5-7; see also IAF, Tab 1

at 3, 4, 9-10. After a hearing by video conference, the administrative judge found

that the agency had met its burden of proof concerning one of the critical

2

The appellant asserted that he suffers from disabling health issues arising from prior

military service, including hypertension, depression, and anxiety. IAF, Tab 9 at 84. He

was certified 70% disabled by the Department of Veterans Affairs. IAF, Tab 24 at 4-5.

The appellant did not allege that the agency violated the Uniformed Services

Employment and Reemployment Rights Act of 1994 by discriminating against him

based on his prior military service, and so we need not address that issue. See McBride

v. U.S. Postal Service, 78 M.S.P.R. 411, 414-15 (1998).

3

The appellant additionally claimed that the agency retaliated against him for

whistleblowing, and he checked the boxes for various prohibited personnel practices on

the appeal form. IAF, Tab 1 at 4-11. The administrative judge issued an extensive

order regarding affirmative defenses and narrowed the issues during the prehearing

conference. See IAF, Tabs 35-36.

4

elements 4 and rejected the appellant’s affirmative defenses. The administrative

judge thus affirmed the agency’s action. IAF, Tab 50, Initial Decision (ID) at 44.

¶5 An agency may remove an employee for unacceptable performance pursuant

to 5 U.S.C. § 4303 after showing by substantial evidence that: (1) the agency’s

performance appraisal system was approved by the Office of Personnel

Management (OPM); (2) the employee’s performance failed to meet the

established performance standards in one or more critical elements of his

position; (3) the agency established performance standards and critical elements

and communicated them to the employee at the beginning of the performance

appraisal period; (4) the agency warned the employee of the inadequacies of his

performance during the appraisal period and gave him an adequate opportunity to

improve; and (5) after an adequate improvement period, the employee’s

performance remained unacceptable in at least one critical element. See Gonzalez

v. Department of Transportation, 109 M.S.P.R. 250, ¶ 6 (2008).

The agency communicated performance standards to the appellant.

¶6 On review, the appellant alleges that the agency did not communicate his

performance standards to him in advance as required. Petition for Review (PFR)

File, Tab 1 at 5-6; see Guillebeau v. Department of the Navy, 362 F.3d 1329,

1337 (Fed. Cir. 2004) (performance standards must be reasonable, based on

objective criteria, and communicated to the employee in advance). He alleges

that the agency generally informed him of what he needed to do to achieve

acceptable performance, but the agency did not identify the specific measures he

needed to take to improve his performance for each particular element, standard,

and expectation. PFR File, Tab 1 at 6-7. He also alleges that his supervisor in

4

The administrative judge decided the appeal based on the appellant’s failure to

achieve satisfactory performance in one critical element, Demonstrates Job Knowledge.

IAF, Tab 50 at 27. The agency was only obligated to prove that the appellant’s

performance was unacceptable in a single critical element. See Davis v. Department of

Agriculture, 29 M.S.P.R. 22, 23 n.* (1985).

5

Sanford failed to define her expectations clearly and in real and measurable terms

in the OPS. Id. at 7-8.

¶7 Based on the record and hearing testimony, the administrative judge

properly concluded that the agency showed by substantial evidence that the

appellant’s performance standards were valid and that it clearly and repeatedly

communicated those standards to him. See ID at 11-13. The appellant’s Sanford

supervisor communicated the agency’s performance standards in detail when she

initially gave him a performance plan on October 29, 2010, see IAF, Tab 13

at 21-23, and again during his mid-year review on March 31, 2011, when she

communicated the standards and expectations in detail with feedback on specific

problems he was having, see id. at 19-20. She communicated such information

during optional performance discussions held on June 24 and July 19, 2011. See

id. at 8-11, 17-18. She also communicated in detail the critical elements for his

performance plan, along with the performance standards and expectations, when

she placed him on the September 2011 PAP, and again, when she initiated the

OPS period. See IAF, Tab 12 at 66-69, 80-82; see also id. at 62-64. His Sanford

supervisor additionally communicated to him the observable deficiencies that

prevented him from performing successfully. See, e.g., IAF, Tab 11 at 8-10, 17,

19, Tab 12 at 31, 67, 81. After the appellant was detailed to Fayetteville, his

supervisor there reviewed his performance standards and expectations with him.

IAF, Tab 12 at 28-29. His performance standards and expectations did not

change during the detail in Fayetteville. Compare id. at 28, with IAF, Tab 13

at 21-23.

¶8 An agency may give content to an employee’s otherwise valid performance

standards by informing him of specific work requirements through written

instructions, information concerning deficiencies and methods of improving

performance, memoranda describing unacceptable performance, and responses to

his questions concerning performance. Baker v. Defense Logistics Agency,

25 M.S.P.R. 614, 617 (1985), aff’d, 782 F.2d 1579 (Fed. Cir. 1986). Here, the

6

agency gave content to the appellant’s performance standards both before and

during the OPS. See, e.g., IAF, Tab 12 at 31, Tab 13 at 8-11,17-18, Tab 32

at 3-16, 18, 20-25, 30-32. The agency’s efforts included placing the appellant on

his second PAP in September 2011, and assigning a mentor to work with him.

See IAF, Tab 12 at 71-75, 80-82. The agency also assigned him a mentor in

Sanford during the OPS period. IAF, Tab 10 at 46, Tab 12 at 68. When he was

detailed to Fayetteville, his supervisor there met regularly with him and assigned

him a mentor. 5 See IAF, Tab 11 at 3, 6-7. The agency thus showed by substantial

evidence that it established performance standards and critical elements and

communicated them to the appellant often, in advance, and in various ways.

The agency warned the appellant of performance deficiencies.

¶9 The appellant asserts on review that the agency failed to provide specific

examples of deficient work for each critical element and performance standard.

PFR File, Tab 1 at 6-7; see Gonzalez, 109 M.S.P.R. 250, ¶ 6 (an agency must

warn an employee of the inadequacies of his performance during the appraisal

period and give him an adequate opportunity to improve). The record shows,

however, that the agency informed the appellant about specific errors over many

months both during performance discussions and as a part of mentoring. See,

e.g., IAF, Tab 12 at 3-6, 8, 10, 31, Tab 13 at 10, 17, Tab 32 at 3-16, 18, 20-25,

30-32. The appellant’s assertion that the agency failed to warn him of

performance deficiencies is thus unavailing.

The OPS plan document was not defective.

¶10 The appellant argues that his Sanford supervisor used a “cut and paste”

methodology to create the OPS document, assembling the document from portions

of other documents issued earlier. PFR File, Tab 1 at 7-8. An agency’s

5

The Board has found that day-to-day training and assistance from a mentor, coupled

with numerous progress discussions with management, provide a reasonable opportunity

to improve performance. Corbett v. Department of the Air Force, 59 M.S.P.R. 288,

290-91 (1993).

7

methodology for creating a document in support of an opportunity to improve,

however, is immaterial because the OPS document served its intended purpose.

The document notified the appellant that he was failing to meet the performance

standards and expectations for two critical elements of his position, Demonstrates

Job Knowledge and Achieves Business Results. IAF, Tab 12 at 67. It advised

him that he failed to process cases in a timely manner and to respond to

supervisory questions about the status of specific cases. Id. at 66. It advised him

that he had difficulty analyzing and evaluating information, made repeated

processing errors, and did not appear to understand the agency’s work processes.

Id. The document further addressed how he might achieve a successful level of

performance. Id. at 67.

¶11 The appellant also asserts that the OPS document was defective because it

did not offer a basis for measuring improvement in “real and measurable terms.”

PFR File, Tab 1 at 8. The document, however, clearly stated that the appellant

“must be able to complete [his] workloads accurately and timely” to demonstrate

that he could adjudicate claims independently, and thus achieve a successful level

of performance. IAF, Tab 12 at 68. It defined timely as “acting on information

as soon as possible after receiving it and adjudicating claims as soon as possible

after receiving all documentation.” Id. Taken with the other information in the

OPS document, this succinct statement informed the appellant of how he might

improve his performance. The OPS document also explained that the appellant

would receive regular feedback from his supervisor. See Baker, 25 M.S.P.R.

at 617. The appellant’s Sanford supervisor, however, testified that the appellant

refused to meet with her when she sought to give him feedback regarding his

progress. Hearing Transcript (HT), Vol. 1 at 108-10. Her notes for one meeting,

which she gave to the appellant, address specific areas for improvement,

including timeliness, organization, workload management, efficiency, and

8

subject-matter mastery. IAF, Tab 12 at 31. The appellant’s assertion that the

OPS document was defective is thus unavailing. 6

The notice of proposed removal and notice of decision were not defective.

¶12 The appellant argues that the notice of proposed removal and notice of

decision, both of which were prepared by the Fayetteville Operations Supervisor,

do not specifically set forth the performance standards that he failed to meet and

explain his deficiencies in meeting those standards. PFR File, Tab 1 at 6-7. He

further argues that the examples of poor performance cited in these documents are

inconsistent with the performance standards set forth in the PAP 7 and OPS. Id.

The notice of proposed removal, however, summarized in considerable detail the

performance standards that the appellant failed to meet during the OPS. IAF,

Tab 10 at 45-46. These were drawn from the list of performance standards and

expectations set forth in the OPS document. See IAF, Tab 12 at 67. The notice

of proposed removal included several detailed examples of the appellant’s failure

to meet specific performance standards. Id. at 47-51. The agency gave the

appellant an opportunity to respond, but he did so without challenging any of the

information given in the examples. Id. at 43-44. The notice of decision reiterated

some of the examples cited in the notice of proposed removal, see id. at 36-40,

and the performance standards that the appellant failed to meet during the OPS,

see id. at 33-34. The Fayetteville Operations Supervisor testified that the

examples she cited in the notice of proposed removal and notice of decision

represented the types of errors that occurred repeatedly during the appellant’s

OPS. HT, Vo1. 1 at 299-303. The appellant’s argument therefore is unavailing.

6

The appellant also asserts without further explanation or examples that “the OPS

doubled in content and requirements (approximately one month later) when compared to

the original [PAP].” PFR File, Tab 1 at 8. The Board generally does not address such

bare and unsubstantiated allegations of error. See Tines v. Department of the Air Force,

56 M.S.P.R. 90, 92 (1992).

7

To the extent that the September 2011 PAP is relevant, it listed all the critical

elements for the appellant’s position. See IAF, Tab 12 at 80.

9

The agency showed that the appellant received training.

¶13 The appellant argues that the agency did not show that it provided the

training he needed. PFR File, Tab 1 at 9. To the contrary, the appellant received

considerable one-on-one training both before and during the OPS period. The

agency assigned him a mentor during the September 2011 PAP to assist him with

maintaining better control of his workload. IAF, Tab 10 at 46, Tab 12 at 71-75.

He was assigned a mentor when the agency initiated the OPS period in Sanford.

IAF, Tab 10 at 46, Tab 12 at 68. When he arrived in Fayetteville, the agency

assigned him a new local mentor who continued to work with him on his areas of

difficulty and trained him in additional types of claims processed in that office.

IAF, Tab 10 at 46, Tab 12 at 29; HT, Vol. 1 at 318-21. The agency reduced the

Fayetteville mentor’s workload so that he would be available to assist the

appellant extensively. HT, Vol. 1 at 318. Hence, the appellant’s assertion that he

did not receive training is thus unavailing.

The agency delegated the deciding official the authority to remove the appellant.

¶14 The appellant argues that the Fayetteville Operations Supervisor lacked the

authority to remove him because she had served as the proposing official, and

because her position description did not include such authority. PFR File, Tab 1

at 8-9. A proposing official and deciding official, however, need not be separate

individuals. See Franco v. Department of Health & Human Services, 32 M.S.P.R.

653, 657 (1987). Moreover, section 4303 only requires that “an employee who is

in a higher position than the employee who proposed the action” concur with the

removal decision when the agency head is not the proposing official. 5 U.S.C.

§ 4303(b)(1)(D)(ii). The Fayetteville Operators Supervisor testified that she

removed the appellant under authority that her manager delegated to her, thus

satisfying the statutory requirement that a higher-level employee concur with the

removal decision. See HT, Vol. 1 at 306; HT, Vol. 2 at 28-31.

10

The administrative judge addressed the issues related to discrimination.

¶15 In 2011 and 2012, the appellant filed three EEO complaints: EEOC Nos.

ATL-11-0079-SSA, ATL-11-0889-SSA, and ATL-12-0620-SSA. See IAF, Tab 8

at 87. He argues on review that the administrative judge “ignored” these

complaints and the issues he thought they addressed. PFR File, Tab 1 at 4-5; see

also id. at 9-10. The EEOC’s administrative judge consolidated and then

dismissed these complaints on the appellant’s own motion, which allowed him to

file a mixed-case appeal. See IAF, Tab 9 at 3-5. The record was extensively

developed on the issues of discrimination and retaliation for prior EEO activity,

see, e.g., IAF, Tabs 8-9, 11-12, 35, 39, and the administrative judge addressed

these issues at length in the initial decision, see ID at 28-43. Review of her

analysis and the record shows that she considered the entire body of evidence,

drew appropriate inferences, and made reasoned conclusions on issues of

credibility. See Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987).

¶16 Additionally, the report of investigation (ROI) for the appellant’s post-

removal complaint, EEOC No. ATL-12-0620-SSA, was not yet available when

the record was open below. 8 See IAF, Tab 8 at 87. The complaint pertains to

alleged disparate treatment concerning training opportunities and the removal

itself. See IAF, Tab 9 at 7-18. To the extent that the appellant is asserting that an

ROI might contain new and material evidence that was not available when the

record closed, or a new legal argument, see PFR File, Tab 1 at 4-5, his argument

is unavailing. The extensive record and testimony contain evidence regarding the

issues in the complaint, and the administrative judge fully addressed all of his

allegations of discrimination. Notably, it was the appellant who sought to

consolidate all of his EEO complaints soon after filing his post-removal

complaint, see IAF, Tab 9 at 3, and he also opposed the agency’s motion to

8

The complaint was filed on July 6, 2012. See IAF, Tab 9 at 7.

11

suspend case processing in the instant appeal until the ROI for that complaint was

completed. See IAF, Tabs 15, 17. Accordingly, the appellant’s arguments are

unavailing, and he has offered no reason for the Board to disturb the

initial decision.

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

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

12

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.