The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SURESH SURI, DOCKET NUMBER
Appellant, SF-0432-13-0564-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: October 17, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.
F. Thomas Giambattista, Esquire, Wright-Patterson Air Force Base, Ohio,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed its action removing the appellant from his position based on his
performance. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 agency removed the appellant from his Senior Research Chemist
position, effective May 31, 2013, based on his alleged failure to demonstrate an
adequate level of contribution commensurate with his salary for the period from
October 1, 2011, through September 30, 2012. 2 IAF, Tab 4, Subtabs 4a, 4b, 4d.
Prior to his removal, the agency placed the appellant on a contribution
improvement plan (CIP) between February 14, 2011, and August 19, 2011. IAF,
Tab 4, Subtabs 4n, 4p, 4q. On or about September 15, 2011, the agency notified
the appellant that he had passed the CIP. IAF, Tab 4, Subtab 4j; see IAF, Tab 4,
Subtab 4k. However, at the end of the 2012 rating period, within 2 years of the
2
The administrative judge found that the agency’s removal action was equivalent to an
action taken under 5 U.S.C. chapter 43. Initial Appeal File (IAF), Tab 18, Initial
Decision (ID) at 1; see 75 Fed. Reg. 53,093-94 (Aug. 30, 2010). Because the appellant
worked as part of a demonstration project, which waived provisions of chapter 43 to the
extent necessary to allow for a contribution-based compensation system, the
administrative judge found that the agency was only required to prove that it placed the
appellant on a contribution improvement plan that provided him an opportunity to
improve and that his contribution score fell below the required level within 2 years of
the start of the CIP. ID at 4; see 75 Fed. Reg. 53,093-94, 53,098 (Aug. 30, 2010).
Neither party disputes these findings.
3
beginning of the CIP, the agency determined that his performance again fell
below an acceptable level relative to his salary. 3 IAF, Tab 4, Subtabs 4d-4g.
¶3 The appellant filed an appeal with the Board regarding his removal and
requested a hearing. IAF, Tab 1. He argued, inter alia, that his performance was
not inadequate. Id. at 6. He also raised affirmative defenses of age and national
origin discrimination, as well as reprisal for engaging in protected equal
employment opportunity activity. Id.; IAF, Tab 12 at 11.
¶4 After holding the requested hearing, the administrative judge issued an
initial decision reversing the agency’s removal action. See ID. He found that the
agency did not meet its burden to prove by substantial evidence that the appellant
failed to make an adequate contribution during the period at issue. ID at 3-9. He
also found that the appellant failed to prove his affirmative defenses. 4 ID at 9-11.
¶5 The agency has filed a petition for review, to which the appellant filed a
response. Petition for Review (PFR) File, Tabs 1, 3. It argues that the
administrative judge erred in failing to consider documentary evidence in the
record, which satisfied the agency’s burden to prove by substantial evidence that
the appellant’s performance was inadequate. PFR File, Tab 1.
¶6 The administrative judge found that the agency’s witnesses made general,
conclusory assertions concerning the appellant’s performance during the
2012 rating period, without providing specific examples of deficiencies that
justified his low contribution score. ID at 5-7. We have reviewed these
3
The appellant received a contribution score of 2.48 in 2012, which was considered
unacceptable because it was more than 0.3 points below his expected score of 3.73.
IAF, Tab 4, Subtab 4g at 1, Subtab 4l at 8. The appellant was a Level 3 Chemist, but
contribution scores between 2.0 and 2.9 correspond to Level 2 work. IAF, Tab 4,
Subtab 4g at 1, Subtab 4l at 11.
4
The appellant did not file a petition for review, so we will not disturb the
administrative judge’s findings concerning his affirmative defenses.
4
witnesses’ testimony 5 and agree with the administrative judge’s assessment. 6
¶7 On review, the agency does not appear to dispute the administrative judge’s
characterization of its witnesses’ testimony. Rather, it argues that the
administrative judge erred by focusing exclusively on the testimony at hearing
and evidence in the agency file, rather than considering the record as a whole,
including documentary evidence the appellant submitted. PFR File, Tab 1 at 6.
¶8 Specifically, the agency argues that the administrative judge made a
material error of fact in finding that the record evidence was insufficient to
explain the basis for the appellant’s 2012 contribution score. Id. at 4-5. It asserts
that its responses to the appellant’s Interrogatories 9 and 10, which were included
in Exhibit A of the appellant’s prehearing submission, and which the
administrative judge admitted into evidence, contained “dispositive” information
concerning why the appellant received the contribution score he received, as
compared to his colleagues’ contributions and their corresponding scores. Id.
at 5, 7.
¶9 As an initial matter, as to the agency’s conjecture that the administrative
judge “overlooked this significant evidence” because he did not mention it in the
initial decision, we note that an administrative judge’s failure to mention all of
5
We also reviewed the testimony of two agency employees whom the appellant, not the
agency, called as witnesses. As the administrative judge noted, both of these
employees’ testimony was of limited relevance. See ID at 8. One employee supervised
the appellant until July 2011, the other employee did not begin supervising him until
August 2012, and neither of these employees could comment, based on firsthand
knowledge, on the appellant’s performance during the 2012 rating period. See Hearing
Compact Disc (HCD).
6
The appellant’s supervisor provided minimal specificity, testifying that the appellant
failed to lead or define any projects, build teams, and secure funding. See HCD
(supervisor’s testimony). This appears inaccurate, however, because the appellant’s
2012 performance appraisal indicates that his assistance on a team researching cyanate
ester resins helped to secure $365,000 in funding for continued work on the project, that
he served as the principal investigator on a project to develop triazole cure chemistry,
and that he spoke with an individual at NASA upon learning that NASA might have
renewed interest in advanced energetic hydrocarbons. IAF, Tab 4, Subtab 4g at 2.
5
the evidence of record does not mean that he did not consider it in reaching his
decision. See 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). We also find it curious that the agency admittedly made no reference at
the hearing to this evidence, which it now claims is dispositive. PFR File, Tab 1
at 4. Notably, at the conclusion of the hearing, the administrative judge stated
that he remained concerned as to whether there was sufficient evidence regarding
the substantive basis for the appellant’s 2012 contribution score, whether the
score fairly reflected his contributions in 2012, and why the agency believed his
contributions were more consistent with that of a Level 2, rather than a Level 3,
Chemist. HCD at 4:25:33-4:28:40. He asked agency counsel whether there was
any additional evidence regarding this issue and, more specifically, anything he
could use to evaluate whether the appellant’s performance was consistent with
Level 2 or Level 3. Id. Even in response to that inquiry, the agency made no
reference to Exhibit A or the information contained therein. Id.
¶10 In any event, we do not agree that Exhibit A can be used for comparison or
that it is dispositive. Exhibit A contains a list of the overall contribution scores
that seven Level 3 Chemists under the same supervisor 7 as the appellant received
in 2011 and 2012, as well as summaries of five of these employees’ contributions
between September 30, 2010, and September 30, 2012. IAF, Tab 12 at 16, 23-42.
However, a significant number of the tasks enumerated in the Exhibit A
summaries are undated, so we cannot identify which of them were considered in
which year when assigning scores. Id. at 23-41. The tasks are also grouped into
four categories (outside proposals, external publications, presentations of merit in
professional societies, and research/work opportunities created), without an
explanation of how these categories correspond to the four criteria used to
7
This individual was the appellant’s first-level supervisor of record, and issued his
performance evaluations, but did not actually supervise his day-to-day activities. See
HCD (supervisor’s testimony).
6
evaluate contributions (problem solving, communication, technology
management, teamwork and leadership) and how each employee scored in each of
those criteria.
¶11 The agency now argues that the appellant received a low score because he
“only published one article and only worked on one experiment,” whereas his
colleagues made “voluminous” contributions. PFR File, Tab 1 at 7. However,
the appellant’s supervisor explicitly testified that, in determining contribution
scores, the agency considered the quality and “worth” of employees’ work and its
impact on the agency’s mission, more so than the quantity of their work. See
HCD (supervisor’s testimony). As an example, the supervisor noted that,
although there were more tasks identified on the appellant’s 2012 appraisal than
his 2011 appraisal, he received a significantly higher score in 2011, because the
“impact” of his contributions was greater that year. Id.; see IAF, Tab 4,
Subtab 4g at 2, Subtab 4i at 2. Thus, the fact that the summaries in Exhibit A
enumerate various tasks that other Level 3 Chemists performed does not allow us
to conduct any meaningful comparison because we have no information regarding
their relative quality or significance.
¶12 The appellant’s supervisor also testified that employee contributions are
measured against standards set forth in the Federal Register, but the agency has
not explained how it assessed the contributions identified in Exhibit A against
these published standards. See HCD (supervisor’s testimony). Moreover, the
deciding official testified that, after determining employee scores, agency
managers compared employees’ contributions to confirm consistency of the
scores assigned for various levels of contribution. See HCD (deciding official’s
testimony). However, the agency did not submit any such comparison evidence.
¶13 The agency also asserts that the administrative judge could have compared
evidence it submitted regarding the appellant’s performance during the CIP—in
Tabs 4j-4r of its response file—with evidence regarding his level of performance
during the 2012 appraisal period to assess whether his contribution score was
7
reasonable. PFR File, Tab 1 at 5. Rather than conducting any specific
comparison of the appellant’s performance during the CIP, as compared to
afterwards, the agency makes a blanket citation to nine tabs of evidence, with
only the bare assertion that this evidence “could have been used as comparison to
the Appellant’s level of contribution during the period in question.” Id. This is
wholly insufficient to establish a basis for review. See Weathers v. Department of
the Navy, 121 M.S.P.R. 417, ¶ 7 (2014) (citing 5 C.F.R. § 1201.115(a)(2)); see
also 5 C.F.R. § 1201.115(a)(2) (a petitioner alleging that an initial decision
contains erroneous findings of material fact must explain why the challenged
factual determination is incorrect). Regardless, as previously explained, we do
not have the tools to conduct such a comparison on our own because the agency
did not provide adequate information concerning how it evaluated various tasks
when assigning contribution scores.
¶14 Based on the foregoing, we find that the agency has not established any
basis for review. We therefore AFFIRM 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:
8
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
9
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.