The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS R. RUSSELL, DOCKET NUMBER
Appellant, PH-0432-13-0335-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 16, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David Fallon, Esquire, Albany, New York, for the appellant.
Rick Pizur, Tobyhanna, Pennsylvania, 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 the appellant’s performance-based reduction in grade. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 appellant was employed as a GS-11 Supply Systems Analyst when the
agency reduced him in grade to the position of GS-07 Supply Technician using
the procedures set forth in 5 U.S.C. § 4303. Initial Appeal File (IAF), Tab 1
at 21, Tab 5 at 6-21. The agency determined, at the conclusion of the appellant’s
performance improvement plan (PIP) of over 60 days, that his performance
remained unsatisfactory. IAF, Tab 5 at 9.
¶3 The appellant had previously filed an equal employment opportunity
complaint alleging discrimination based on race (African-American), disability
(degenerative joint disease of both legs), and reprisal. IAF, Tab 6 at 15-18. He
subsequently amended the complaint to include the reduction in grade. Id. The
agency issued a final agency decision denying the appellant’s claims. Id.
at 19-31. The appellant appealed the reduction in grade to the Board under
mixed-case procedures. IAF, Tab 1. After holding a hearing, the administrative
judge reversed the agency’s performance-based reduction in grade because the
agency failed to demonstrate by substantial evidence that it communicated or
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applied a valid performance standard under which the appellant’s performance
would be measured during the PIP. Hearing Compact Disc (HCD); IAF, Tab 33,
Initial Decision (ID) at 11.
¶4 The agency filed a timely petition for review. Petition for Review (PFR)
File, Tab 1. In its petition for review, the agency argues that the administrative
judge erred when he found that it required the appellant to perform at the “fully
successful” level during the PIP. Id. at 8. The agency further argues that it was
made clear to the appellant that all he had to do to overcome the PIP was “to
adopt more positive and cooperative methods of communication with all whom
you interact” and that the minimum required level, although a subjective
standard, was “reasonable, realistic, and attainable by [a]ppellant.” Id. at 8-9.
The appellant has responded in opposition. PFR File, Tab 6.
Validity and Communication of Performance Standards
¶5 In a performance-based action under chapter 43, an agency must establish
by substantial evidence 2 that: (1) the Office of Personnel Management approved
its performance appraisal system; (2) the agency communicated to the appellant
the performance standards and critical elements of his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(b)(1); (4) the
agency warned the appellant of the inadequacies of his performance during the
appraisal period and gave him a reasonable opportunity to improve; and (5) the
appellant’s performance remained unacceptable in at least one critical element.
White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).
Performance standards are not valid unless they set forth a minimum level of
performance that an employee must achieve to avoid performance-based action.
Henderson v. National Aeronautics & Space Administration, 116 M.S.P.R. 96, ¶ 9
(2011). Under certain performance appraisal systems, performance of a critical
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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).
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element may fall between “fully successful” and “unacceptable.” 5 C.F.R.
§§ 430.207(c), 430.208(d). However, under such systems, only the lowest rating
level of “unacceptable” (or its equivalent) will support an agency action under
chapter 43. See Van Prichard v. Department of Defense, 117 M.S.P.R. 88, ¶ 14
(2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012).
¶6 We agree with the administrative judge that the agency failed to show by
substantial evidence that its performance standards were valid because the
appellant was not notified of the standard for performing at the minimum level in
each objective. In its regulations, the agency developed a four-tiered system for
measuring each individual objective with the standards of “Excellence,”
“Success,” “Needs Improvement,” and “Fails.” IAF, Tab 12, Subtab 8 at 7. An
overall “Fair” rating is assigned when an employee receives “Needs
Improvement” in one or more objectives and is not rated “Fails” in any other
objectives. Id. An “Unsuccessful” rating is assigned for an employee who fails
in one or more objectives regardless of the ratings assigned to other objectives.
Id. The appellant’s February 2012 Senior System Civilian Evaluation Report
Support Form stated that the performance standards were written at the “Success”
level, however, the form did not include information about the requirements for
achievement of other ratings. IAF, Tab 6 at 44-46. Similarly, the performance
objectives (as opposed to performance standards) on this form did not provide for
criteria for meeting the objectives at various performance levels. Id. The
appellant thus was not notified of how to meet varying performance levels for
each standard and consequently how to meet the performance levels for his
overall rating. The agency’s performance standards are therefore invalid. See
Henderson, 116 M.S.P.R. 96, ¶ 16.
¶7 Although, in order to be valid, performance standards must set forth the
minimum level required to avoid a performance-based action, an agency may cure
invalid performance standards by communicating sufficient information regarding
performance requirements at the beginning of, and even during, a PIP. See
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id., 116 M.S.P.R. 96, ¶¶ 16, 18. We agree with the administrative judge that the
agency failed to cure its defective standards because it did not communicate to
the appellant that he needed only to improve to the “Needs Improvement” level
and it did not sufficiently describe how he could improve his performance to
avoid a performance-based action. In the Notice of 60 Calendar Day Performance
Improvement Plan, the agency specified three major performance objectives in
which the appellant was failing and stated that, “to improve your performance in
this objective to a minimum level of success,” it is necessary “to adopt more
positive and cooperative methods of communication with all whom you interact.”
IAF, Tab 5 at 6-7. The agency gave the appellant 60 calendar days to
demonstrate that he was working at an “acceptable and successful performance
level” with respect to the objective. Id. at 7. It is not clear to which of the three
major performance objectives the agency referred when it required the appellant
to perform at a successful performance level or whether the agency was referring
to his communication skills. However, it is clear that the agency did not specify
the minimum level of performance that was required for the appellant to avoid a
performance-based action.
¶8 After the conclusion of the PIP, the agency informed the appellant that
“despite being provided . . . time to improve you[r] performance to a satisfactory
level, your performance has not improved and remains unsatisfactory.” Id. at 9.
The Notice of Proposed Reduction in Grade stated that the appellant’s
performance remained unsatisfactory, including unacceptable performance in the
three performance objectives, but did not specify to what level he would have
needed to improve his performance in order to avoid the reduction in grade. Id.
at 10-16. The Notice of Decision in Reduction in Grade similarly did not provide
notice of the required performance level. Id. at 18-21.
¶9 The hearing testimony further supports the finding that the agency did not
communicate the proper standard of performance to the appellant. See HCD. The
proposing official testified that the appellant did not have to be 100% successful
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and that the appellant was only required to improve his communication skills and
attitude in order to succeed under the PIP. Id. However, despite repeated
opportunities to do so, none of the agency witnesses testified that the appellant
was required to improve only to the “Needs Improvement” level, nor did they
testify that this was communicated to him. Id.
¶10 The agency argues that the administrative judge erred because the appellant
was clearly informed that he merely had to meet the subjective standard of
improving his communication skills and attitude in order to avoid a
performance-based action. PFR File, Tab 1 at 8. We do not agree, however,
because the PIP clearly refers to performance objectives with measurable goals
such as timelines for processing inventory adjustments under objective (1) and
meeting suspense dates under objective (2). IAF, Tab 5 at 6. We therefore find
that the agency improperly failed to communicate to the appellant what he needed
to do in order to avoid a performance-based action. See Van
Prichard, 117 M.S.P.R. 88, ¶ 14. Assuming, however, that the appellant needed
only to improve his communication skills and attitude, such an objective is
invalid because it does not describe in sufficient detail what is required of the
appellant and how it will be measured. See Johnson v. Department of the
Interior, 87 M.S.P.R. 359, ¶ 6 (2000) (standards must be sufficiently precise and
specific as to invoke a general consensus as to their meaning and content and
provide a firm benchmark toward which the employee may aim performance).
¶11 Accordingly, we find that the agency neither developed valid performance
standards nor cured defective performance standards by communicating the
standards to the appellant. See Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18. Because
the agency has not shown that its performance standards were valid, the
appellant’s reduction in grade cannot be sustained. See Van
Prichard, 117 M.S.P.R. 88, ¶ 24 (the Board will not consider charged
performance deficiencies absent valid performance standards).
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Affirmative Defenses
¶12 Finally, we do not disturb the administrative judge’s findings regarding the
appellant’s affirmative defenses. Because we do not sustain the agency’s action,
we agree with the administrative judge that it is not necessary to address the
appellant’s general contention of harmful procedural error as it is not outcome
determinative. See Taylor v. U.S. Postal Service, 75 M.S.P.R. 322, 328 (1997)
(declining to address a harmful procedural error claim after finding that the
agency failed to prove its charge). On review, the appellant does not challenge
the administrative judge’s findings that he failed to establish his affirmative
defenses of discrimination based on race (African-American), disability
(degenerative joint disease of both legs), or reprisal. ID at 12-13. We discern no
error in the administrative judge’s conclusions regarding the appellant’s
affirmative defenses, and therefore we leave those findings undisturbed.
ORDER
¶13 We ORDER the agency to cancel the appellant’s reduction in grade and to
retroactively restore the appellant to the position of Supply Systems Analyst,
effective October 28, 2012. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶14 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
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¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶16 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶17 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
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must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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.
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
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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. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.