The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH L. MCGOWAN, DOCKET NUMBER
Appellant, DA-0432-13-0598-I-1
v.
DEPARTMENT OF HOMELAND DATE: November 20, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Phillip Davis Helslander, Esquire, Duncanville, Texas, for the appellant.
Laura J. Carroll, South Burlington, Vermont, 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 his removal for unacceptable performance and denied his affirmative
defenses. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency placed the appellant, an Information Technology Specialist, on
a 60-day performance improvement plan (PIP) effective September 17, 2012,
based upon its determination that his performance was unacceptable in two of the
five critical performance goals of his position. Initial Appeal File (IAF), Tab 14
at 24-29 (performance plan and appraisal), Tab 13 at 82-89 (notice of placement
on PIP). After extending the PIP for an additional period of time, the agency
issued the appellant notice that he had not improved his performance during the
PIP on the two identified critical performance goals, IAF, Tab 13 at 70-75, and it
proposed to remove him under chapter 43, id. at 4-7. The deciding official
imposed the appellant’s removal effective June 28, 2013. IAF, Tab 8 at 13-17.
¶3 The appellant filed an initial appeal challenging his removal and raising
affirmative defenses of disparate treatment based upon his prior military service
under the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA), equal employment opportunity (EEO) retaliation, disability
discrimination, and harmful error. IAF, Tab 1. The administrative judge held a
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hearing and issued an initial decision affirming the agency’s removal action and
denying each of the appellant’s affirmative defenses. IAF, Tab 30, Initial
Decision (ID). In his initial decision, the administrative judge found that the
appellant’s performance standards were valid, that they were properly
communicated to the appellant, and that he was given a reasonable opportunity to
improve his performance. ID at 4-20. Additionally, the administrative judge
found that the agency established by substantial evidence that the appellant’s
performance at the end of his PIP remained unacceptable in at least one critical
area, and he further rejected the appellant’s argument that the agency breached
the collective bargaining agreement when it established the critical elements of
his position. ID at 18-24, 26-27. Lastly, the administrative judge found that the
appellant failed to establish any of his affirmative defenses, noting, inter alia, that
the appellant failed to identify similarly-situated comparator employees and that
he otherwise failed to show that the legitimate reasons supporting the agency’s
removal action were pretexts for discrimination based on his prior military
service, alleged disability, or EEO activity. ID at 25, 27-34.
¶4 The appellant has filed a petition for review arguing that the agency
committed harmful error by breaching several provisions of the collective
bargaining agreement. Petition for Review (PFR) File, Tab 1 at 2-8. On review,
the appellant also argues that the agency issued an “inappropriate, premature
PIP,” that it wrongfully imposed new critical performance standards during his
performance period prior to his placement on the PIP and that it failed to provide
him a meaningful opportunity to improve prior to proposing his removal. Id. at 6,
9-10, 11. The agency has filed a response in opposition to the petition for review.
PFR File, Tab 3.
¶5 To prevail in an appeal of a performance-based removal under chapter 43,
the agency must establish by substantial evidence that: (1) it 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
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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. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 6 (2013). Performance standards must, to the
maximum extent feasible, permit the accurate appraisal of performance based on
objective criteria. Id., ¶ 21; 5 U.S.C. § 4302(b)(1). Standards must be
reasonable, realistic, attainable, and clearly stated in writing.
Towne, 120 M.S.P.R. 239, ¶ 21. Performance standards should be specific
enough to provide an employee with a firm benchmark toward which to aim his
performance, and they must be sufficiently precise so as to invoke a general
consensus as to their meaning and content. Id. An agency may provide
additional guidance on such performance standards through written and oral
communication, id., ¶ 23, and chapter 43 performance standards do not have to
have numerical measurements, Wilson v. Department of Health & Human
Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985).
¶6 We have reviewed the appellant’s petition for review, along with the
administrative judge’s thorough initial decision, and we find that the appellant
has presented no basis on review to disturb the initial decision. We agree with
the administrative judge that the agency established by substantial evidence that
the appellant’s performance remained unacceptable in one or more of his critical
performance areas at the end of his PIP, see IAF, Tab 13 at 70-75 (PIP close out
notice explaining, for example, that the appellant submitted incomplete
documents with errors and inaccuracies and that he did not submit weekly written
updates), and we disagree with the appellant’s argument on review that the
agency did not provide him a meaningful opportunity to improve during the PIP,
see PFR File, Tab 1 at 9-10. The record demonstrates that the appellant’s
supervisor met with him in person and provided written and oral feedback during
the PIP and that the agency also assigned the appellant a mentor during the PIP.
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IAF, Tab 13 at 70. The Board has found similar offers of assistance during a PIP
to be adequate in the course of sustaining a performance-based action under
chapter 43. See, e.g., Towne, 120 M.S.P.R. 239, ¶ 20 (valid offers of assistance
include meeting with the appellant in person, as well as providing written and
oral guidance).
¶7 We also have considered the appellant’s argument that the agency
committed harmful error by establishing the critical performance goals of his
position during the middle of the yearly appraisal period and that it implemented
an “inappropriate, premature PIP” after creating those new goals. PFR File,
Tab 1 at 2, 6. We find that this argument does not support reversing the agency’s
performance-based action. The record reflects that the agency issued the
appellant notice of the critical performance goals of his position on April 23,
2012, for the performance appraisal period covering October 1, 2011, through
September 30, 2012, and that the appellant was given a 6-month period during
which his performance was measured under these new standards. IAF, Tab 13
at 4-7 (notice of proposed removal outlining chronology of events). Based upon
his inadequate performance on two of his critical performance goals during this
6-month period, the appellant was then placed on a PIP for over 90 days, at the
end of which his performance remained unacceptable in the same two areas. Id.
Citing these performance deficiencies, the agency proposed the appellant’s
removal under chapter 43. Id.
¶8 Our reviewing court has expressly affirmed the validity of such a practice
under chapter 43, noting that “[t]he period of appraisal of an employee for an
adverse action and the agency’s appraisal period need not coincide.” Weirauch v.
Department of the Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986). In Weirauch, the
Federal Circuit further explained that “the evaluation of an individual employee
may encompass part of two official agency appraisal periods and may involve
more than one standard,” provided that the appellant is provided notice of the
standard prior to the appraisal period at issue, and that the appellant is also
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provided an additional period to improve during a PIP prior to the agency
proposing his removal. Id. Under these standards, we find no error with the
agency issuing the appellant notice of the critical performance goals of his
position in April 2012, giving him 6 months to perform under these new
standards, and then placing him on a PIP for over 90 days prior to proposing his
removal under chapter 43. See id.; see also Boggess v. Department of the Air
Force, 31 M.S.P.R. 461, 466 (1986) (the agency cannot simultaneously issue the
appellant new standards and place the appellant on a PIP based upon those new
standards).
¶9 The appellant also argues on review that the administrative judge erred in
rejecting his harmful error affirmative defense based on his dispute, with the
agency, over whether he was covered by the agency’s collective bargaining
agreement. PFR File, Tab 1 at 6. We agree with the administrative judge,
however, that the appellant has not established how this alleged error affected the
appellant’s removal under chapter 43. ID at 26-27; 5 C.F.R. § 1201.56(c)(3).
The record reflects that a dispute arose during the drafting of the appellant’s
critical performance goals as to whether he was a member of the agency’s
bargaining unit and thus entitled to union representation during these meetings.
ID at 26-27. Before this dispute was resolved, the agency created and
implemented the appellant’s April 2012 performance plan. IAF, Tab 14 at 19-29.
The agency and the local chapter of the American Federation of Government
Employees, however, subsequently entered into a memorandum of understanding
in September 2012, just prior to the appellant’s placement on the PIP, “regarding
the changes to the performance goals of the [performance plan and appraisal] for
the position of Information Technology Specialist,” IAF, Tab 17 at 6; the record
further demonstrates that the performance plan agreed to by the agency and the
local union chapter in September 2012 is identical to the performance plan issued
to the appellant in April 2012. Compare IAF, Tab 17 at 6-12 (September 2012
performance plan), with IAF, Tab 14 at 19-29 (April 2012 performance plan). We
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therefore concur with the administrative judge that the appellant failed to
establish a claim of harmful procedural error in connection with either the
adoption of the appellant’s critical performance elements or the dispute involving
his status as a bargaining unit employee. ID at 26-27.
¶10 In addition, the appellant suggests on review that the deciding official
considered information outside of the scope of the notice of proposed removal in
rendering his decision to remove the appellant. PFR File, Tab 1 at 12. Although
the appellant identifies this as a potential violation of Article 30 of the collective
bargaining agreement, 2 id., such a claim, on its face, also raises a question of
whether the deciding official committed a due process violation under Ward v.
U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). Under the Ward/Stone
line of cases, a deciding official commits a due process violation when, without
notice to the appellant, he considers new and material information in rendering
his decision either to sustain the charges or to impose a certain penalty. See id.;
see also Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1374-76 (Fed. Cir. 1999).
¶11 We find that the deciding official committed neither a due process violation
nor harmful error under the collective bargaining agreement. After the agency
issued the appellant the notice of proposed removal, the deciding official issued
the appellant a second letter expressly informing him that he would consider
certain documents in the course of reviewing his proposed removal and also
provided the appellant with two sets of these documents and an additional
opportunity to respond. IAF, Tab 8 at 25-26. Under these facts, we find that the
2
Article 30 of the collective bargaining agreement concerns performance-based actions,
and provides, in part, that, where an action is proposed under that Article, the employee
or his representative will be provided, upon request, with copies of the documents on
which the action is based. IAF, Tab 19 at 86. On review, the appellant contends that
Article 30 “makes it clear that documents provided should be those considered in
making the proposal, not others, such as documents provided to the Deciding Official to
bolster or supplement those considered by the Proposer.” PFR File, Tab 1 at 12.
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appellant was on notice of the scope of information the deciding official would
consider in rendering his decision and that he therefore did not violate the
appellant’s right to due process. Additionally, the deciding official’s letter of
decision makes clear that the documents provided to the appellant were “the
material on which the proposal letter was based,” and that this information is
therefore not new and material information outside of the scope of the notice of
proposed removal under Ward/Stone. Id. at 13 (emphasis added); see Kolenc v.
Department of Health & Human Services, 120 M.S.P.R. 101, ¶ 14 (2013) (new
information is defined as that information beyond the scope of the notice of
proposed removal). For these same reasons, we also find that the deciding
official did not commit harmful error under Article 30 of the collective
bargaining agreement when considering this information. Our review of these
documents further confirms that they address the appellant’s performance on the
same critical performance elements during both his appraisal period and PIP and
that they were therefore properly considered by the deciding official in reaching a
decision. See Addison v. Department of Health & Human Services, 46 M.S.P.R.
261, 265 (1990) (an agency may consider employee performance on the same
critical element both prior to and during a PIP provided it is within 1 year of the
notice of proposed removal), aff’d, 945 F.2d 1134 (Fed. Cir. 1991).
¶12 Finally, although the appellant does not specifically address the substance
of the administrative judge’s decision to deny each of his affirmative defenses,
the appellant asserts on review that he is not withdrawing “the USERRA and
disability claims from consideration.” PFR File, Tab 1 at 2. Pursuant to 5 C.F.R.
§ 1201.115, a party filing a petition for review must present specific objections to
the initial decision and identify the evidence, statute, or regulation which
demonstrates error. Rasheed v. Department of the Air Force, 7 M.S.P.R. 585, 587
(1981). Furthermore, before the Board will undertake a complete review of the
record, the petitioning party must explain why the challenged factual
determination is incorrect, and identify the specific evidence in the record which
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demonstrates the error. Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133
(1980). Moreover, where a hearing has been held, and the agency’s adverse
action has been sustained, the Board’s inquiry proceeds to the ultimate question
of whether the appellant has met his overall burden of proving discrimination as
to any of his affirmative defenses. See, e.g., Mahaffey v. Department of
Agriculture, 105 M.S.P.R. 347, ¶ 20 (2007).
¶13 Despite the appellant’s failure to present specific objections to the
administrative judge’s rejection of each of his affirmative defenses, we have
conducted a review of the administrative judge’s findings and we agree that the
appellant did not carry his ultimate burden as to any affirmative defense. The
record reflects that the appellant presented no evidence of any comparator
employee for the purposes of either his USERRA or his disability-based disparate
treatment claims nor evidence that he had requested a reasonable accommodation
prior to his removal. ID at 25-26, 31-32, 34. We further agree with the
administrative judge that the agency’s comprehensive explanation of the
appellant’s performance deficiencies establishes a legitimate, nonretaliatory
reason for his removal, and we find that the appellant has presented no evidence
that the agency’s removal action was motivated by the appellant’s prior EEO
activity. ID at 30.
¶14 For the aforementioned reasons, the administrative judge’s initial decision
sustaining the appellant’s removal from employment is AFFIRMED.
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
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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
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
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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.