The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER C. THURMAN, DOCKET NUMBER
Appellant, SF-0432-13-0524-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 4, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Peter C. Thurman, Port Orchard, Washington, pro se.
Lisa A. Evans, Esquire, Silverdale, Washington, 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
sustained his removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant was employed as a GS-12 Mechanical Engineer at the
agency’s Naval Facilities Engineering Command Northwest in Bremerton,
Washington. Initial Appeal File (IAF), Tab 4 at 19. On January 27, 2012, the
appellant’s supervisor informed the appellant that his performance was
unacceptable in Critical Element (CE) 2 of his position—Execution of Duties. Id.
at 19-21. On April 5, 2012, the supervisor issued a performance improvement
plan (PIP) to the appellant for a period of 90 days. Id. at 22-25. The appellant
was indefinitely suspended effective June 22, 2012, and he did not return to work
until October 11, 2012. Id. at 26, 28-31. Because the appellant did not have an
opportunity to complete the PIP due to his indefinite suspension, on
November 29, 2013, the agency extended the PIP to February 27, 2013. Id.
at 26-27.
¶3 On April 10, 2013, the appellant’s supervisor proposed the appellant’s
removal for Unacceptable Performance in CE 2. IAF, Tab 4 at 41-43. The notice
of proposed removal specified that the appellant failed to demonstrate minimally
3
acceptable performance in CE 2 based on his untimely work on three projects that
he had been assigned during the PIP 2 and the insufficient quality of his work. Id.
The appellant submitted a written reply. Id. at 44-45. The deciding official
sustained the charge of Unacceptable Performance in the critical element of
Execution of Duties and the appellant was removed from his position effective
May 10, 2013. Id. at 18, 46-49.
¶4 The appellant filed a Board appeal challenging his removal and requested a
hearing. IAF, Tab 1. He asserted that his performance was acceptable and that
his “product and services are satisfactory and timely.” Id. at 5. He also raised
affirmative defenses of race discrimination based on disparate treatment and
disparate impact. IAF, Tabs 10, 13.
¶5 After holding the requested hearing, the administrative judge issued an
initial decision that affirmed the appellant’s removal. IAF, Tab 21, Initial
Decision (ID). The administrative judge found that the performance standard for
CE 2 was valid, the agency communicated that standard to the appellant, the
appellant failed to demonstrate acceptable performance with respect to CE 2, and
the agency afforded the appellant a reasonable opportunity to demonstrate
acceptable performance. ID at 9-17. The administrative judge also found that the
appellant failed to prove his affirmative defenses. ID at 17-21.
2
These projects, which were assigned to the appellant during the period from
November 29, 2012, to February 27, 2013, were as follows: (1) a Feasibility Study of
Addition of Dust Collector Controls in various buildings at the Puget Sound Naval
Shipyard (PSNS); (2) a Feasibility Study of Addition of Sand Blaster Controls in
various buildings at the PSNS; and (3) the Correction of Code Violations in one
building at the PSNS. IAF, Tab 4 at 33, 41-42. A fourth project assigned to the
appellant during the same period is not at issue here because the appellant’s supervisor
found that the appellant provided an acceptable explanation for failing to complete that
project. See id. at 38.
4
¶6 The appellant has filed a petition for review, with a supplement. Petition
for Review (PFR) File, Tabs 4, 6. The agency has filed a response in opposition
to the petition for review. 3 PFR File, Tab 7.
ANALYSIS
¶7 To prevail in an appeal of a performance-based removal under chapter 43,
the agency must establish by substantial evidence that: (1) the agency
communicated to the appellant the performance standards and critical elements of
his position; (2) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(b)(1); (3) the agency warned the appellant of the inadequacies of his
performance during the appraisal period and gave him an adequate opportunity to
improve; and (4) after an adequate improvement period, the appellant’s
performance remained unacceptable in at least one critical element. 4 Towne v.
Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013). 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).
The administrative judge correctly found that the performance standard at issue
here is valid and that the agency communicated the standard to the appellant.
¶8 The portion of the appellant’s performance plan pertaining to CE 2
describes “acceptable” performance for CE 2 as follows: “Willingly accepts work
assignments, properly follows instructions, uses technical knowledge, and applies
skills needed to produce a product or service of good quality in a timely and
3
Several months after the record closed on review, the appellant filed an additional
pleading. PFR File, Tab 8. Although entitled “Motion for Summary Judgment,” this
submission is essentially a request that the Board issue a final decision in this
matter. Id.
4
The agency also has the burden of proving that the Office of Personnel Management
has approved the agency’s performance appraisal system and any significant changes
thereto, if the appellant raises such a challenge. Daigle v. Department of Veterans
Affairs, 84 M.S.P.R. 625, ¶¶ 11-12 (1999). The appellant did not raise this issue in the
instant case. ID at 8.
5
responsive manner.” IAF, Tab 4 at 20. On review the appellant does not
challenge the administrative judge’s finding that the agency proved by substantial
evidence that the performance standard at issue here is valid. See ID at 11. We
discern no reason to disturb the administrative judge’s explained finding
regarding this issue.
¶9 As for whether the agency met its burden of proving that it communicated
to the appellant his performance standard for CE 2, the administrative judge
found that the documentary evidence and the hearing testimony reflect that CE 2
was communicated to the appellant by various means at various times, including
the PIP notice and meetings with his supervisor. ID at 11 (citing IAF, Tab 4 and
Hearing Compact Disc (HCD) (testimony of the appellant’s supervisor)). In
particular, the administrative judge found that the record reflects that the
appellant’s supervisor met and communicated with the appellant throughout the
PIP to provide feedback and answer questions about CE 2. ID at 11. The
documentary evidence, which includes the supervisor’s notes from these
meetings, supports this finding. See IAF, Tab 4 at 33-40. Therefore, we discern
no reason to disturb the administrative judge’s finding that the agency met its
burden of proving that the appellant’s performance standard for CE 2 was
communicated to the appellant. ID at 11.
The administrative judge correctly found that the agency proved by substantial
evidence that the appellant failed to demonstrate acceptable performance
regarding CE 2.
¶10 In addressing whether the agency proved that the appellant failed to
demonstrate acceptable performance regarding CE 2, the administrative judge
considered the relevant documentary evidence and hearing testimony, including
the testimony of the appellant and his supervisor. See ID at 12-15. In his hearing
testimony, as summarized in the initial decision, the appellant’s supervisor stated
that the appellant failed to complete the first project within the PIP period and
that the project was performed in an unacceptable method in terms of timeliness
6
and quality. ID at 5-6. The appellant’s supervisor testified that the appellant’s
performance on the second project was unsatisfactory on the same bases. ID at 6.
As for the third project, the supervisor testified that the appellant failed to deliver
a work product that could be reviewed within the PIP deadline. ID at 6. In
particular, the supervisor testified that the appellant failed to provide essential
information for the third project, including cost estimates and drawings. ID at 6.
He stated that, without such information, the project was unacceptable in terms of
CE 2 because the work product was incomplete and untimely. ID at 6.
¶11 By contrast, in his hearing testimony, the appellant testified that he
completed the projects within budget and on time. See ID at 13. The
administrative judge rejected this contention, noting that, in his response to the
notice of proposed removal, the appellant conceded that he failed to complete the
first two of the three assignments at issue on time and stated that he completed
the third project after the PIP ended. ID at 13, see IAF, Tab 4 at 44. The
administrative judge found that, although the appellant may have met the internal
customers’ deadlines for the projects, the relevant deadlines for purposes of the
PIP were the ones set forth in the PIP. ID at 13. In that regard, the
administrative judge found that the record reflects that, throughout the PIP
period, the appellant’s supervisor discussed the timeframes for the underlying
tasks and conveyed the PIP deadlines for the three projects at issue here and
related subordinate tasks needed to complete the projects. ID at 13-14; see IAF,
Tab 4 at 33-40.
¶12 The administrative judge found that the record reflects that the appellant
was unable to complete any of the three projects at issue within the PIP period.
ID at 13 (citing IAF, Tab 4, testimony of the appellant’s supervisor); see IAF,
Tab 4 at 39. The administrative judge found that, because none of the PIP
assignments were completed, the appellant failed to meet, inter alia, the
timeliness requirement for acceptable performance in CE 2. ID at 14. The
administrative judge found that a reasonable person could agree with the
7
appellant’s supervisor that the appellant’s performance was inadequate in that the
appellant failed to timely complete any of the assignments at issue during the PIP.
ID at 15. Thus, the administrative judge found that the agency showed by
substantial evidence that the appellant failed to demonstrate acceptable
performance concerning CE 2. ID at 15.
¶13 The appellant challenges this finding on review, asserting that he completed
all three PIP assignments at issue in this appeal—two in January 2013 and the
remaining project in March 2013. PFR File, Tab 4 at 3, Tab 6 at 3. The appellant
also contends that “all projects received were completed as required by [his
supervisor] and customers, as no customers complained about [his] work and [his
supervisor] resumed issuing regular assignments to [him] after the PIP ended . . .,
never stating that [the appellant failed the PIP] until April 10, 2013.” PFR File,
Tab 6 at 3.
¶14 We find these arguments unpersuasive. In finding that the agency proved
by substantial evidence that the appellant failed to demonstrate acceptable
performance regarding CE 2, the administrative judge thoroughly considered the
relevant documentary evidence and hearing testimony regarding the projects
underlying the agency’s charge of unacceptable performance. ID at 12-15. The
record supports the administrative judge’s finding that the appellant failed to
complete any of the three projects at issue within the extended 3-month PIP
period. ID at 13. In particular, we note that the appellant’s supervisor’s progress
notes regarding the projects at issue reflect that the appellant did not complete
any of those projects before the end of the extended PIP period. See IAF, Tab 4
at 40 (stating that, as of February 28, 2013, none of the assignments had
been completed).
¶15 We also find unpersuasive the appellant’s contention on review that he
demonstrated acceptable performance during the PIP because there were no
complaints about his work from internal customers, and his supervisor continued
to assign him work after the PIP and did not inform him that he had failed the PIP
8
until several weeks later. PFR File, Tab 4 at 3, Tab 6 at 3. Contrary to the
appellant’s contention, neither the absence of customer complaints nor the fact
that his supervisor did not inform him that he had failed the PIP until several
weeks after the PIP ended demonstrate that his performance was acceptable.
The administrative judge correctly found that the agency proved by substantial
evidence that it afforded the appellant a reasonable opportunity to demonstrate
acceptable performance regarding CE 2.
¶16 We also discern no reason to disturb the administrative judge’s finding that
the agency proved by substantial evidence that it afforded the appellant a
reasonable opportunity to demonstrate acceptable performance. See ID at 17. As
the administrative judge noted, the documentary evidence memorializes a series
of one-on-one PIP review and coaching meetings, with accompanying task
discussions, time estimates, and deadlines; the appellant’s supervisor engaged in
ongoing discussions and meetings with the appellant regarding any concerns he
may have had with completing this PIP; and the appellant was given timeline
guidance for performing tasks, in addition to overall deadlines, and extensions as
unexpected issues arose, to ensure that he had an opportunity to plan and execute
each of these reviewed tasks. ID at 15-16; see IAF, Tab 4 at 32-40.
¶17 On review, the appellant’s only argument regarding the issue of whether he
had an opportunity to demonstrate acceptable performance consists of his claim
that he was not properly mentored during his tenure with the agency. PFR File,
Tab 6 at 3 (citing ID at 16). The administrative judge properly rejected this
argument, finding that, while the appellant may feel that he should have received
additional and/or different mentoring, this does not explain or justify the poor
quantity and quality of his work. ID at 16-17.
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.
¶18 As noted above, during the proceedings below the appellant raised
affirmative defenses of race discrimination based on disparate treatment and
9
disparate impact. IAF, Tab 10 at 13, Tab 13. The appellant appears to reassert
his disparate treatment claim on review, alleging that the administrative judge
erred in finding that race was not a factor in the agency’s decision to remove him.
PFR File, Tab 4 at 4.
Race discrimination based on disparate treatment
¶19 To establish a claim of prohibited employment discrimination, an employee
first must establish a prima facie case; the burden of going forward then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its action; and,
finally, the employee must show that the agency’s stated reason is merely a
pretext for prohibited discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Regarding disparate treatment, an employee
may establish a prima facie case of prohibited discrimination by introducing
preponderant evidence to show that he is a member of a protected group, he was
similarly situated to an individual who was not a member of the protected group,
and he was treated more harshly or disparately than the individual who was not a
member of his protected group. Buckler v. Federal Retirement Thrift Investment
Board, 73 M.S.P.R. 476, 497 (1997). However, in a case like this, where the
record is complete and a hearing has been held, the Board will proceed directly to
the ultimate question of whether the appellant has demonstrated by a
preponderance of the evidence that the agency’s reason for its actions was a
pretext for discrimination. Berry v. Department of Commerce, 105 M.S.P.R. 596,
¶ 10 (2007).
¶20 The administrative judge noted that both the appellant’s supervisor and the
deciding official testified that the sole basis for their actions was the appellant’s
workplace performance. ID at 18-19. Applying the factors for resolving
credibility issues set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987), the administrative judge credited the testimony of both witnesses,
finding that their testimony was “straight-forward, largely consistent, and based
on personal knowledge as a percipient witness.” ID at 19. In addition, he found
10
that their stated reasons for taking the actions at issue were “specific, detailed,
largely consistent with the written record, and not inherently improbable.” ID at
19. Based on the record as a whole, the administrative judge found that the
appellant failed to show by preponderant evidence that he was subjected to
disparate treatment discrimination based on race. ID at 20.
¶21 The appellant challenges this finding on review, arguing that the
administrative judge “ignored racial comments made at work to [a]ppellant, and
acts or words of hostility or hatred toward [a]ppellant at work.” PFR File, Tab 4
at 4. He also asserts that his supervisor and the deciding official are not credible
witnesses. PFR File, Tab 6.
¶22 We find the appellant’s arguments unavailing. The appellant does not
specify what acts or words the administrative judge allegedly ignored and, in any
event, the administrative judge’s failure to mention all of the evidence of record
does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Regarding the appellant’s apparent
objection to the administrative judge’s credibility determinations, the Board must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . While the appellant clearly
does not agree with the administrative judge’s credibility determinations, he has
failed to advance any sufficiently sound reasons for overturning them. See
Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980).
Race discrimination based on disparate impact
¶23 To establish a prima facie case of disparate impact, the appellant must
identify the specific employment practice that is challenged as responsible for the
statistical disparities and show that the application of the particular practice
11
created the disparate impact. See Stern v. Federal Trade
Commission, 46 M.S.P.R. 328, 333 (1990). That is, the appellant must, as an
initial matter, present sufficient statistical evidence to prove that the employment
practice at issue fell more harshly on one group than another. Hidalgo v.
Department of Justice, 93 M.S.P.R. 645, 653 (2003). If the appellant
demonstrates that the agency uses a particular employment practice that causes a
disparate impact, the agency must either show that it does not cause such impact
or demonstrate that the practice is job-related for the position in question and
consistent with business necessity. IAF, Tab 11 (citing 42 U.S.C. §§ 2000e-
2(k)(1)(A)(i), 2000e-2(k)(1)(B)(ii)). An appellant may also establish disparate
impact by showing the availability of alternative practices that achieve the same
business ends with less impact on the protected group. IAF Tab 11
(citing 42 U.S.C. § 2000e-(2)(k)(1)(C)); Stern, 46 M.S.P.R at 333.
¶24 The administrative judge explained in the initial decision that the appellant
identified the employment practice at issue as the agency’s practice of
transferring employees who are “not wanted in the workplace” for reasons other
than work performance, resulting in a stifling environment for the transferred
employee, rather than addressing the “behavior as necessary to nullify those
reasons.” ID at 21 (quoting IAF, Tab 13). The administrative judge found that
the appellant presented inadequate evidence to support his apparent assertion that
it was an agency practice to transfer employees as alleged and further found that
it was unclear how the appellant was affected by such an alleged policy based on
his testimony that he had been performing these duties in the years leading up to
the PIP. ID at 21. In addition, the administrative judge found that the appellant
failed to adequately show that the application of any such practice created a
disparate impact based on race and failed to present any statistical evidence
showing that transfers, or any identified employment practice, fell more harshly
on one group than another. ID at 21. The administrative judge therefore found
12
that the appellant failed to support by preponderant evidence his claim of
discrimination on the basis of disparate impact. ID at 21.
¶25 Aside from his assertions on review that “white males are traditionally
concentrated at the top ranks of the Navy,” “most white males have every
intention of keeping with that tradition,” and “black males are traditionally
concentrated at the bottom of the Navy,” PFR File, Tab 6 at 3, the appellant
does not offer any argument or evidence addressing his disparate impact claim.
Based on our review of the record, we find no reason to disturb the administrative
judge’s finding that the appellant failed to prove this affirmative defense.
The severity of the penalty
¶26 The appellant also seems to argue on review that the penalty of removal was
too severe in light of his work record and length of service. PFR File, Tab 4 at 4.
The administrative judge correctly rejected this argument. ID at 21-22. As the
administrative judge explained, the Board has no authority to mitigate a removal
or demotion taken under 5 U.S.C. chapter 43 for unacceptable performance. ID at
21-22 (citing Davis v. Department of Health & Human Services, 58 M.S.P.R. 538,
541 (1993)).
Judicial bias claim
¶27 On review, the appellant also raises an apparent claim of judicial bias and
asks the Board to assign this appeal to another administrative judge. PFR File,
Tab 4 at 1. In support of this request, the appellant states that he believes the
administrative judge “will never make a decision in favor of [the a]ppellant
against [the a]gency” and “will never acknowledge or interpret testimony,
evidence, submissions or law in a manner favorable to [the appellant] against [the
a]gency.” Id. The appellant asserts that this belief is based on the administrative
13
judge’s written and verbal correspondence with him in both this and his prior
Board appeal. 5 Id.
¶28 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
a deep-seated favoritism or antagonism that would make fair judgment
impossible. See Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The appellant’s allegations on review,
which do not relate to any extrajudicial conduct by the administrative judge,
neither overcome the presumption of honesty and integrity that accompanies an
administrative judge, nor establish that the administrative judge showed a
deep-seated favoritism or antagonism that would make fair judgment impossible.
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:
5
In his prior Board appeal, the appellant challenged the agency’s decision to
indefinitely suspend him based on his loss of access to classified information. Thurman
v. Department of the Navy, MSPB Docket No. SF-3443-12-0727-I-1 (0727), IAF, Tab 1.
The administrative judge issued an initial decision dismissing the appeal as untimely
filed without good cause shown for the filing delay. 0727, IAF, Tab 10, Initial
Decision. On review, the Board affirmed the initial decision in a nonprecedential final
order dated September 16, 2013.
14
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 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
15
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.