The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID SCHILLER, DOCKET NUMBER
Appellant, PH-0432-13-0143-I-1
v.
DEPARTMENT OF DEFENSE, DATE: January 28, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
J. Thomas Harrington, Esquire, Washington, D.C., for the appellant.
Timothy A. Wray, Fort Belvoir, Virginia, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND
¶2 The agency appointed the appellant as professor of contract management at
the Defense Acquisition University on July 5, 2011. Initial Appeal File (IAF),
Tab 5 at 175. The agency placed him on a 5 ½-month performance improvement
plan (PIP) on May 10, 2012, based upon the agency’s determination that the
appellant’s performance was unacceptable in the critical elements of teaching,
knowledge management, and leadership. Id. at 135-42. The agency issued a
notice of proposed removal under chapter 43 for failing to satisfy the
requirements of the PIP in October 2012. Id. at 45-48. Regarding the teaching
goal, the agency stated that the appellant received sub-element scores below the
required level in two appraisal categories, he received negative comments from
students, and the dean did not grant certification to teach the required class due to
“the continued inconsistent level of instruction and leadership demonstrated in
the classroom.” Id. at 45-46. The notice stated that the appellant failed to meet
his knowledge sharing objective in that he did not answer two “Ask a Professor”
(AAP) questions per month or successfully complete two Acquipedia articles by
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the deadline. Id. at 46. Finally, the agency maintained that the appellant had
failed to demonstrate appropriate leadership skills. Id. After reviewing the
appellant’s oral and written responses, the dean, as deciding official, found that
the proposed removal was supported by a preponderance of the evidence and
removed the appellant from his position. Id. at 36-37, 42-44.
¶3 The appellant filed an initial appeal challenging his removal and raising
affirmative defenses of sex and age discrimination. IAF, Tab 1 at 4, 7. After a
5-day hearing, the administrative judge issued an initial decision affirming the
agency’s removal action and denying both of the appellant’s affirmative defenses.
IAF, Tab 63, Initial Decision (ID). In her initial decision, the administrative
judge found that the appellant’s performance standards were valid, the agency
properly communicated them to the appellant, and the appellant was given a
reasonable opportunity to improve his performance but it remained unacceptable
in the three critical elements alleged by the agency. ID at 5-20. The
administrative judge found that the record did not support the appellant’s
allegations of discrimination based on sex or age, and that the appellant had not
shown that he was treated differently or more harshly than younger female
employees. ID at 29.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 In his petition for review, the appellant argues that the administrative judge
made numerous erroneous findings of material fact in the initial decision and that
the Board should substitute its own determinations of fact for those made by the
administrative judge. Petition for Review (PFR) File, Tab 1 at 4. The appellant
alleges that the administrative judge failed to consider much of the appellant’s
evidence, thus making erroneous determinations, regarding his allegations as
follows: (1) the agency violated the express terms of the PIP by increasing the
appellant’s workload; (2) the agency failed to provide the appellant with a
reasonable opportunity to demonstrate acceptable performance; (3) the appellant
reduced the number of negative student comments and was denied certification
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for the required class by the dean’s abuse of discretion; (4) the agency delayed in
providing a classroom observer during the PIP, which impacted his PIP
performance; (5) the appellant made an innocuous comment about Afghanistan;
(6) the appellant complied with administrative processes and procedures
regarding attendance at a conference, use of supplementary materials, cell phone
usage, seating assignments, and generation of AAP questions; (7) the agency
showed animus in imposing improper AAP and Acquipedia PIP requirements, but
that the appellant established success in meeting the requirements; and (8) the
record contained evidence of the dean’s personal animus and gender bias. Id. at
4-5. The agency has filed a response, arguing that the administrative judge’s
findings are consistent with the evidence and should not be disturbed. PFR File,
Tab 3 at 4. The appellant has filed a reply, again arguing that the initial decision
does not demonstrate that the administrative judge considered the specific facts
and evidence he cited in his petition for review. PFR File, Tab 4 at 4-5.
¶5 We have reviewed the appellant’s petition for review and the administrative
judge’s thorough analysis in the initial decision and find that the appellant has
presented no basis on review to disturb the initial decision. The petition for
review identifies certain evidence and arguments, made below as part of the
voluminous record in the present case, and asserts that the administrative judge
ignored or failed to consider the evidence because the 35-page initial decision did
not specifically address each detail regarding the appellant’s tenure at the agency.
See PFR File, Tab 1 at 4-5; IAF, Tab 61 at 19, 24-26, 44-47, 58-60, 64, 68, 71-72,
81-82. An administrative judge’s determination not to mention all of the
extensive testimony and evidence does not mean that she did not consider it in
reaching her decision upholding the agency’s action. 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). The appellant argues that the initial decision failed to
meet the requirements of Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980), in which the Board stated that an
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initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
legal reasoning and conclusions of law. PFR File, Tab 4 at 5. In contrast to the
initial decision in Spithaler, 1 M.S.P.R. at 589, the initial decision in the present
case contains approximately thirty pages of detailed analysis, ID at 2-31. The
appellant offers no authority for the proposition that an initial decision must
address each individual alleged fact in the voluminous written and hearing record,
and ignores the instruction of Spithaler to “summarize” the evidence. See
Spithaler, 1 M.S.P.R. at 589. We find that the appellant’s arguments on review
constitute mere disagreement with the administrative judge’s explained findings
on the issues, and we see no reason to reweigh the evidence or substitute our
assessment of the record evidence for that of the administrative judge in this
appeal. 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).
The administrative judge properly sustained the appellant’s removal.
¶6 To prevail in an appeal of a performance-based removal under chapter 43,
the agency must establish the following by substantial evidence 2: (1) the agency
notified the appellant of 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
2
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.” Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 6 (2013) (quoting 5 C.F.R. § 1201.56(c)(1)). The agency’s
evidence need not be more persuasive than that of the appellant to meet this standard, as
substantial evidence is a lesser standard of proof than preponderance of the evidence.
Towne, 120 M.S.P.R. 239, ¶ 6.
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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). The appellant
challenges the administrative judge’s findings that the agency proved
requirements three and four by substantial evidence. See PFR File, Tab 1 at 4-5.
¶7 We find that the appellant has not shown that the administrative judge erred
in finding that the agency provided him with a reasonable opportunity to
demonstrate acceptable performance during the PIP. PFR File, Tab 1 at 9-10. In
her well-reasoned initial decision, the administrative judge cited Board authority
for the relevant factors in a determination of a meaningful opportunity to
improve, including the nature of the appellant’s employment duties, the
performance deficiencies involved, and the amount of time sufficient to enable
the employee to demonstrate acceptable performance. See ID at 11; see also
Macijauskas v. Department of the Army, 34 M.S.P.R. 564, 566 (1987), aff’d
847 F.2d 841 (Fed. Cir. 1988) (Table). The appellant makes no argument of legal
error but alleges that the administrative judge ignored evidence that the agency
had increased his workload during the PIP and that the PIP requirements were
“non-negotiable” and exceeded the requirements of his Faculty Career
Assessment Plan (FCAP). PFR File, Tab 1 at 9-10. As noted by the
administrative judge, the record demonstrates that the agency provided the
appellant with an extended 5 ½-month PIP period with clear written requirements
and that his supervisor provided him with regular feedback both in writing and
periodic in-person progress meetings. See IAF, Tab 5 at 49, 58-88, 135-38; ID at
3, 13, 16.
¶8 We have considered the appellant’s arguments that the agency did not
provide him a reasonable opportunity to demonstrate acceptable performance
during the PIP and find that the record does not support such a conclusion. The
appellant argued that he had “established” through the testimony of R.N., a
7
Defense Acquisition University department chair, that the PIP requirements
improperly exceeded the FCAP requirements and that the dean and the appellant’s
immediate supervisor “did not want Schiller to succeed.” PFR File, Tab 1 at 10;
see IAF, Tab 61 at 61, 114-15; Hearing Testimony (HT) at 638: 4-15. The
petition for review cites no authority for the proposition that the requirements in a
PIP cannot exceed the requirements of the appellant’s prior performance goals or
that a PIP must be negotiable. Board authority states that an agency may modify
the quality and quantity of performance required of its employees, as long as it
does so according to a reasonable standard and makes the appellant aware of the
modifications. Mouser v. Department of Health & Human Services, 32 M.S.P.R.
543, 548 (1987).
¶9 As for the testimony of R.N., the transcript reflects that he testified to his
personal opinion that it was “inappropriate” to include a goal in a PIP not in the
FCAP, but did not testify to an agency policy or other authority precluding such a
practice. HT at 627: 14-24. R.N. testified that he was a professor and prior
department chair of the Logistics Department, and that he was not the appellant’s
supervisor, but instead was personal friends with the appellant. See HT at
598: 5-22. He testified that he supervised only two faculty members, HT at 602:
21-23, and at no point indicated that he had any authority to determine the
appropriateness of PIP goals determined by agency officials. Regarding the
appellant’s argument that the additional teaching assignment he accepted upon
request by the agency negatively affected his ability to complete other PIP
requirements, we note that, despite these claims, the appellant testified that he
retained 2 weeks of “white space” during the month preceding the deadline for his
two Acquipedia articles. See PFR File, Tab 1 at 8-9; HT at 1299: 16-25. Thus,
after reviewing the evidence highlighted by the appellant, we find that this
evidence does not undermine the administrative judge’s well-reasoned finding
that the appellant was given a reasonable opportunity to demonstrate acceptable
performance during his PIP.
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¶10 The appellant argues that the administrative judge erred in finding that the
agency established that the appellant’s performance remained unacceptable in at
least one critical element, alleging that she failed to consider his evidence
because she did not address several of his alleged facts. See PFR File, Tab 1 at
10-30. The administrative judge need not respond to every theory and
speculation presented by the appellant in reaching her determination. See
Marques, 22 M.S.P.R. at 132. Moreover, we find that none of the claimant’s
arguments are of sufficient weight to overturn the administrative judge’s finding
that his performance remained unacceptable in at least one critical element. The
failure to demonstrate acceptable performance under a single critical element will
support removal under chapter 43. Towne, 120 M.S.P.R. 239, ¶ 6. As such, we
find it necessary to discuss only one critical element in this decision.
¶11 Regarding the critical element of knowledge sharing, the appellant’s
arguments on review mirror the arguments that he made before the administrative
judge, who considered them in her thorough and well-reasoned decision. See
IAF, Tab 61 at 92-95; PFR File, Tab 1 at 29-30. The administrative judge found
that the agency established that the appellant had not met his PIP goal in the
critical element of knowledge sharing, which in part required the appellant to
complete and submit for publishing two Acquipedia articles by October 1, 2012.
ID at 14-15; see IAF, Tab 5 at 42, 136-37. The appellant argues that he
“established his own success” in meeting the requirement, which was improper as
many agency professors submitted none in a given year, but that his supervisor
deviated from the normal handling process. PFR File, Tab 1 at 29; see IAF, Tab
61 at 92-95. Both the appellant and his supervisor testified that the appellant
submitted his second Acquipedia article on September 28, 2012. HT at 60: 5-7,
231: 5-6, 1177: 10-16. The appellant’s supervisor further testified that
September 28, 2012, was a Friday and that the appellant submitted the draft
article at 4:25 p.m., which did not satisfy the PIP requirement that the articles be
completed, have been reviewed and concurred upon, and submitted for publishing
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by Monday, October 1, 2012. HT at 231: 5-15; see IAF, Tab 5 at 137. Indicating
the administrative judge’s review of the evidence, the initial decision discussed
both the testimony of the appellant and his supervisor regarding the PIP goals in
this critical element, including the testimony regarding the suitability of the
articles for publication when submitted by the appellant. ID at 14-15. As
discussed above, despite his arguments that the increased course load negatively
affected his ability to draft the articles, PFR File, Tab 1 at 29-30, the appellant
testified that he had 2 weeks in September without teaching commitments, to
which he referred as “white space,” and he offered no argument that the length of
his PIP was insufficient to complete the assignment, HT at 1299: 16-25. Thus,
we find that the appellant’s arguments on review constitute mere disagreement
with the factual findings of the administrative judge. The initial decision reflects
that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions that the agency had met
its burden of proving continued unacceptable performance despite a reasonable
opportunity to improve. See Paetow v. Department of Veterans
Affairs, 118 M.S.P.R. 462, ¶ 13 (2012).
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.
¶12 The appellant argues that the administrative judge failed to consider his
evidence of the agency’s animus in imposing improper PIP requirements with
respect to the AAP questions and Acquipedia articles. PFR File, Tab 1 at 26-30.
The appellant does not specify the nature of this “animus” on review but merely
alleges that other professors were not subject to the same requirements. Id. The
appellant further argues that the administrative judge failed to consider his
evidence of the dean’s “personal animus and gender bias,” despite conceding that
the administrative judge did an “adequate job” considering evidence regarding
identified comparators and the testimony of a particular former instructor. Id. at
31; see PFR File, Tab 4 at 17-18. He argues that the administrative judge made
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an erroneous finding of material fact because she “ignored” the appellant’s
evidence that the dean misinterpreted his comments and actions as inappropriate
without reason. PFR File, Tab 1 at 31-32. Notably, the appellant cited only the
dean’s misinterpretation of the appellant’s behavior as evidence of gender bias on
review and repeated no allegations of disparate treatment based on the appellant’s
age. Id.; see IAF, Tab 1 at 30-32.
¶13 We find that the appellant has presented no basis for overturning the
administrative judge’s findings. In her initial decision, the administrative judge
provided in-depth analysis for her finding that the appellant had not clearly
established that he was treated more harshly than younger or female faculty
members. 3 ID at 25-26. The appellant argues that the administrative judge
ignored his evidence of the dean’s gender bias because she did not specifically
discuss his arguments concerning three particular incidents of alleged
misunderstanding by the dean of the appellant’s words or actions. See PFR File,
Tab 4 at 17-18. As discussed above, an initial decision need not mention all of
the extensive testimony and evidence in reaching a well-reasoned determination.
Marques, 22 M.S.P.R. at 132. The administrative judge discussed the diverging
testimony of numerous witnesses and her reasons for finding that one witness
who testified to the gender bias of the dean lacked credibility because he never
observed the dean and the appellant together, unlike the other witnesses. ID at
28-29. The appellant has not provided any arguments of legal error or
sufficiently sound factual reasons on review to overturn the administrative
judge’s findings concerning his affirmative defenses. See Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must give deference
3
Although we find it unnecessary to discuss the appellant’s performance in the critical
elements of teaching and leadership, we have reviewed his arguments on review that the
agency failed to meet its burden to prove that his performance remained unacceptable in
these critical elements during the PIP. Even if we found these arguments persuasive,
the evidence in the record is insufficient to meet the appellant’s burden of proof
concerning his discrimination claims.
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to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on 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).
¶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
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.
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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
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.