The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPHLOC T. NGUYEN, DOCKET NUMBER
Appellant, SF-0432-13-0585-I-2
v.
DEPARTMENT OF HOMELAND DATE: October 21, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Josephloc T. Nguyen, Garden Grove, California, pro se.
Meredith A. Johnson, Long Beach, California, 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 action demoting him. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 decision to demote him
from the position of Import Specialist, GS-11, to Customs and Border Protection
(CBP) Technician, GS 7, for unacceptable performance. Initial Appeal File
(IAF-1), Vol. 1, Tab 1. 2 On February 27, 2012, the appellant joined Team 723 (a
commodities team that focuses on footwear, handbags, and luggage), where his
duties were to enforce trade laws and regulations for commercial shipments;
recommend seizure, penalties, and/or fines; classify and verify classifications and
appraisement of shipments based on documents or samples of goods in the
shipment; and handle requests for refunding duties or changing classifications
among other duties. IAF-1, Vol. 4, Tab 4 at 148-52 of 158. The appellant’s
immediate supervisor, the Supervisory Import Specialist, testified that the
appellant also received additional intensive training, which took the appellant
almost 3 weeks instead of 3 days to complete, due to his repetitive errors in
classification. IAF-2, Vol. 2, Tab 7, Hearing Compact Disc (CD) (Dondero). The
2
The administrative judge dismissed the appellant’s first-filed appeal without
prejudice, and the appeal was automatically refiled. The record in the first-filed appeal
is cited herein as IAF-1, and the record in the refiled appeal is cited as IAF-2.
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appellant was counseled on April 20, 2012, when he was not showing sufficient
progress in learning the duties of the position. IAF-1, Vol. 3, Tab 10 at 46-48.
When the appellant’s performance did not improve in shoe classifications, he was
provided new training relating to handbags and luggage, but he continued the
same classification issues that he had with shoes. IAF-1, Vol. 2, Tab 7, Hearing
CD (Dondero). On July 12, 2012, the appellant was issued a letter placing him on
a 60-day Employee Proficiency Plan (EPP), the agency’s formal performance
improvement plan (PIP), based on his unacceptable performance in the three
critical areas of Job Knowledge, Technical Skills, and Professionalism. IAF-1,
Vol. 4, Tab 4 at 123-29 of 158. On October 19, 2012, the appellant’s
performance was rated unacceptable in the three critical competency areas, and on
January 31, 2013, the agency proposed that he be demoted to the position of CBP
Technician, GS-7, for unacceptable performance in Job Knowledge, Technical
Skills, and Professionalism. IAF-1, Vol. 2, Tab 4 at 79-101 of 243. The Director
of Field Operations sustained the demotion on May 29, 2013, and it became
effective on June 2, 2013. Id. at 66-68 of 243.
¶3 On appeal, the appellant challenged his placement on the EPP and argued
that he was not provided a reasonable opportunity to improve. He also claimed
that he was subject to a hostile work environment and demoted because of
discrimination based on his race (Asian), national origin (Vietnamese), and sex
(male), and in retaliation for having engaged in both union and for equal
employment opportunity activity. IAF-1, Vol. 1, Tab 1, Vol. 3, Tab 9.
¶4 Here, after thoroughly discussing the record evidence regarding the element
of Job Knowledge and the five specifications in which the agency identified as
unacceptable performance, the administrative judge found that the appellant
failed to perform successfully in at least one critical element, Job Knowledge.
IAF-2, Vol. 1, Tab 8, Initial Decision (ID) at 9-16. Specifically, the
administrative judge found that, based on the detailed documentation and the
consistent and thorough testimony of the appellant’s immediate supervisor, the
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agency proved all five specifications of that charge by substantial evidence.
Thus, the administrative judge determined that the appellant performed
unsuccessfully in one critical element and sustained the charge. ID at 16.
Because the administrative judge determined that the appellant performed
unsuccessfully in one critical element, she did not address the remaining critical
elements. ID at 16. In addition, the administrative judge found that the appellant
failed to prove his affirmative defenses and by preponderant evidence. Thus, the
administrative judge affirmed the agency’s action.
¶5 On review, the appellant has raised numerous allegations that the EPP
process was flawed and that the administrative judge made errors in sustaining
the charge and affirming the demotion action. Petition for Review (PFR) File,
Tab 1. We have considered the appellant’s arguments on review; however, we
discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. 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 when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same).
¶6 In addition, the appellant argues, inter alia, that the administrative judge
erred because she only made findings concerning one of the three critical
elements for which he was charged with unacceptable performance. PFR File,
Tab 1. The appellant asserts that, because the administrative judge did not make
findings on all three critical elements, she failed to undertake a complete review
of the record prior to issuing her decision. See id. at 12. However, the Board has
held that, in chapter 43 performance cases, an agency’s submission of substantial
evidence showing that the employee’s performance was unacceptable in one
critical element will result in a final disposition of the case. The failure to
consider performance under other critical elements has no impact on the overall
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disposition of the appeal because there is no possibility of mitigation and, hence,
no need to consider cumulative evidence of unacceptable performance. See
Stein–Verbit v. Department of Commerce, 72 M.S.P.R. 332, 339–40 (1996); see
also Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 29 n.12 (2013)
(the failure to demonstrate acceptable performance under a single critical element
will support removal under chapter 43).
¶7 The appellant further contends that the administrative judge erred in finding
that he was provided a reasonable opportunity to improve and he argues that the
60-day improvement period was too short. However, the Board has found that
even a 30-day PIP can satisfy an agency’s obligation to provide an employee with
a reasonable opportunity to demonstrate acceptable performance. Towne,
120 M.S.P.R. 239 at ¶ 10; Lee v. Environmental Protection Agency, 115 M.S.P.R.
533, ¶ 33 (2010). Thus, even though the appellant disagrees with the
administrative judge’s determination that a 60-day improvement period is
reasonable, he has shown no error by the administrative judge.
¶8 The appellant also argues that the administrative judge failed to discuss the
testimony of all of the witnesses, and thus, she erred regarding her findings on his
affirmative defenses. Specifically, the appellant contends that testimony
supporting his claim of an “unhealthy working environment” was not discussed in
the initial decision. He also asserts that the administrative judge failed to
mention testimony from two other witnesses concerning two critical elements not
addressed by the administrative judge. PFR File, Tab 1 at 12. However, 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. 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). In this case, the administrative judge
thoroughly analyzed the appellant’s affirmative defenses and found that he failed
to prove them by preponderant evidence. ID at 19-23. We find no basis upon
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which to disturb the administrative judge’s findings and determinations on these
issues.
¶9 The appellant also asserts that the administrative judge erred by issuing an
“oral ruling” prior to the start of the hearing. The appellant appears to be arguing
that the administrative judge was procedurally required to include such a ruling in
the initial decision. PFR File, Tab 1 at 12. The record reflects that the appellant
filed an objection to the administrative judge’s ruling in a prehearing order dated
December 6, 2014, when the administrative judge did not approve his request to
have his medical bills and doctors’ notes approved as evidence. IAF-2, Vol. 1,
Tabs 3, 5. Based on the appellant’s written objection, the administrative judge
reconsidered her ruling prior to the start of the hearing and reaffirmed that the
exhibit was not admitted. IAF, Vol. 2, Tab 7, Hearing CD. However, the
administrative judge held further that, if she ruled in the appellant’s favor on his
discrimination claims and a subsequent case would need to be opened for
compensatory damages, it would be appropriate to consider the medical evidence
at that time. Id. We find that these actions fall within the administrative judge’s
broad scope of authority and discretion to control the proceedings before her and
the appellant’s challenges fail to warrant reversal of the initial decision. See,
e.g., Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 20
(2014) (seeking to strike the testimony of an agency witness not included in the
initial disclosures but named in the agency file and challenging both the inclusion
and the exclusion of documents in the agency file).
¶10 In addition, the appellant asserts that the agency’s Assistant Chief Counsel
threatened him that, if he filed age and disability claims, the Assistant Chief
Counsel would “interfere” with his appeal. PFR File, Tab 1 at 6, 15. The
appellant contends that he was afraid to raise these arguments earlier on appeal.
Id. However, the appellant has made no showing that these arguments are based
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on new and material evidence not previously available despite his due diligence. 3
Nor has the appellant provided any evidence to support his bare assertions. Id.
Moreover, the record reflects that, to the extent any of the appellant’s claims
below could be interpreted as age or disability discrimination claims, he withdrew
those claims. IAF-1, Vol. 3, Tab 12; ID at 7 n.4.
¶11 Finally, the appellant, who is an e-filer, appears to be asserting that the
administrative judge erred by issuing the initial decision without including his
name on the certificate of service. PFR File, Tab 1 at 13. However, the record
includes the certificate of service, which acknowledges that the Board served the
appellant the initial decision by electronic mail. IAF-2, Vol. 1, Tab 9. Moreover,
the appellant does not appear to argue that he did not timely receive the initial
decision but only that his name was not included on the electronic certificate of
service when he received it. PFR File, Tab 1 at 13. Thus, even if we were to find
that a procedural error occurred based on the appellant’s name not appearing on
the electronic certificate of service, such error is of no legal consequence because
he has not shown that it adversely affected his substantive rights. Karapinka v.
Department of Energy, 6 M.S.P.R. 124, 127 (1981).
¶12 In sum, while the appellant disagrees with the administrative judge’s
findings and determinations in this case, he has shown no basis upon which 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.
3
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R.
§ 1201.115, the Board will not consider arguments or evidence submitted for the first
time with a petition for review absent a showing that they were unavailable before the
record was closed despite the party’s due diligence).
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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.
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
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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.