Antoinette B. Brady v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTOINETTE B. BRADY, DOCKET NUMBER

Appellant, AT-0432-14-0389-I-1

v.

DEPARTMENT OF THE NAVY, DATE: July 24, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephanie Bernstein, Esquire, and Bobby Devadoss, Esquire, Dallas, Texas,

for the appellant.

Terry Rush, Mark Slowiaczek, and Joseph Sullivan, Millington, Tennessee,

for the agency.

BEFORE

Susan Tsui Grundmann, 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 performance-based removal action. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 On August 27, 2013, the agency placed the appellant on a 34-day

performance improvement plan (PIP) for unacceptable performance in the

following three Critical Elements of her GS-14 Equal Employment Manager

position: (1) Implementation of Model Equal Employment Opportunity (EEO)

Program Office Infrastructure; (2) Development of EEO Briefings; and

(3) Development of the Bureau of Naval Personnel FY13 Model EEO Program

Report. Initial Appeal File (IAF), Tab 7 at 51-55, 119. After the agency

determined that the appellant’s performance in Critical Elements 1, 2, and 3 had

not improved to the acceptable level, the agency issued a notice of proposed

removal on October 28, 2013. Id. at 77-79; see IAF, Tab 1 at 14-30. At the same

time, the agency placed the appellant on administrative leave pending a decision

on her proposed removal. IAF, Tab 1 at 11. The appellant presented an oral

reply and submitted a written reply to the proposal notice. IAF, Tab 7 at 82-114.

After considering the appellant’s oral and written replies, the deciding official

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decided to remove her for unacceptable performance in Critical Elements 1, 2,

and 3 of her position effective December 10, 2013. Id. at 116-17, 119.

¶3 The appellant filed an appeal of her removal with the Board. IAF, Tab 1.

She raised the affirmative defenses of a due process violation and discrimination

based on age and disability. 2 IAF, Tab 1 at 3, Tab 3 at 3, 5, Tab 20 at 1, Tab 24

at 4-7, 12-17, 30-32. In an initial decision based on the written record, the

administrative judge affirmed the agency’s removal action. IAF, Tab 28, Initial

Decision (ID) at 1, 23-24. She also found that the appellant failed to meet her

burden of proving her affirmative defenses. ID at 17-23.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 2.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the appellant’s performance-based

removal.

¶5 To prevail in an appeal of a performance-based removal under chapter 43,

the agency must establish by substantial evidence 3 that: (1) the Office of

Personnel Management (OPM) approved its performance appraisal system and

any significant changes thereto; 4 (2) the agency communicated to the appellant

2

The appellant withdrew her affirmative defenses of race discrimination and retaliation

for protected EEO activity. IAF, Tab 24 at 12.

3

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. § 1201.4(p).

4

Ordinarily, the Board will presume that OPM has approved the agency’s performance

appraisal system; however, if an appellant has alleged that there is reason to believe

that OPM did not approve the agency’s performance appraisal system or significant

changes to a previously approved system, the Board may require the agency to submit

evidence of such approval. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,

¶ 5 (2010). We agree with the administrative judge that the appellant has not contested

this factor. See ID at 5 n.4.

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the performance standards and critical elements of her position; 5 (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 her performance during the

appraisal period and gave her a reasonable opportunity to demonstrate acceptable

performance; and (5) the appellant’s performance remained unacceptable in one

or more of the critical elements for which she was provided an opportunity to

demonstrate acceptable performance. Lee, 115 M.S.P.R. 533, ¶ 5.

¶6 In her petition for review, the appellant claims that the administrative judge

erred in finding that the agency’s performance standards are valid under 5 U.S.C.

§ 4302(b)(1). PFR File, Tab 1 at 16; see ID at 6-9, 17. To support her argument,

the appellant reiterates portions of her affidavit that she submitted below alleging

that the standards are impermissibly vague and subjective. PFR File, Tab 1 at 16;

see IAF, Tab 24 at 27. Based on our review of the record, and for the reasons

contained in the initial decision, we discern no reason to disturb the

administrative judge’s finding that the agency’s performance standards are valid.

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 she considered the

evidence as a whole, drew appropriate references, and made reasoned

conclusions).

¶7 The appellant additionally argues that the administrative judge erred in

finding that the agency afforded her an adequate opportunity to improve her

performance. PFR File, Tab 1 at 6-10; see ID at 6-9. Specifically, she alleges

that she did not receive agency assistance in the form of feedback during the PIP,

templates and work samples, or daily meetings with her supervisor that were

described in the PIP. PFR File, Tab 1 at 7-10. She further alleges that the

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In her petition for review, the appellant does not dispute the administrative judge’s

finding that the agency communicated to her the performance standards and critical

elements of her position. See ID at 9; PFR File, Tab 1. We find no reason to disturb

this finding.

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duration of the PIP was unreasonable and that it was not possible for her to

complete the assigned tasks in the 24 workdays during her 34-calendar-day PIP.

Id. at 6-7, 9-10. Finally, she contends that her supervisor denied her requests for

additional or alternative work hours to complete the PIP assignments. Id. at 10.

¶8 The administrative judge found that the agency provided specific

instructions on how to complete the appellant’s assignments and where to ask for

a sample, offered training that she declined, and provided weekly progress reports

during the PIP period. ID at 6-9, 17. The record supports the administrative

judge’s finding that the agency provided such assistance during the PIP. IAF,

Tab 7 at 57-58, 65-71, Tab 27 at 14-17, 21-23. The administrative judge also

found that someone in the appellant’s high-level position with over 30 years of

Federal service should have been able to timely and accurately complete the

assignments. ID at 9, 17; see Satlin v. Department of Veterans Affairs,

60 M.S.P.R. 218, 225 (1993) (finding that the administrative judge properly

considered the appellant’s length of service and experience in concluding that the

appellant had received both adequate instruction and time in which to

demonstrate improvement); see also Lee, 115 M.S.P.R. 533, ¶ 32 (in determining

whether an agency has afforded an employee a reasonable opportunity to

demonstrate acceptable performance, relevant factors include the nature of the

duties and responsibilities of the employee’s position, the performance

deficiencies involved, and the amount of time that is sufficient to provide the

employee with an opportunity to demonstrate acceptable performance). Based on

our review of the record, we agree with the administrative judge’s finding that the

agency provided sufficient assistance to the appellant considering her high-level

position and significant experience. 6

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The appellant claims that the agency did not provide her with sufficient assistance

because she did not have daily meetings with her supervisor as specified in the PIP.

PFR File, Tab 1 at 7-8; see IAF, Tab 7 at 51. However, the supervisor stated in an

affidavit that she was available for daily meetings, but the appellant did not request any

additional meetings beyond what was scheduled. IAF, Tab 27 at 14-15. Even assuming

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¶9 The appellant also argues that the administrative judge erred by relying on

the case, Melnick v. Department of Housing & Urban Development, 42 M.S.P.R.

93 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table), for the proposition that

a 30-day PIP is reasonable because the appellant there had relatively simple

clerical tasks as a GS-5 Secretary, whereas her GS-14 position entailed complex

assignments requiring more time. PFR File, Tab 1 at 7; see ID at 8. Although

she is correct to distinguish Melnick based on the difference in position and

nature of duties, we find that the administrative judge properly cited to the case

as an example of where the Board found that a 30-day PIP was reasonable. The

administrative judge considered other factors in finding that the 34-day PIP was a

reasonable period to demonstrate improvement, such as the appellant’s significant

experience, her high-level position, and the fact that she had known about the

assignments since May 13, 2013. ID at 9; see IAF, Tab 1 at 14-17; see also Lee,

115 M.S.P.R. 533, ¶ 32; Satlin, 60 M.S.P.R. at 225. Because we agree with the

administrative judge that the duration of the 34-day PIP was reasonable, we find

that the agency did not err in denying the appellant’s requests for additional or

alternative hours to work on the overall PIP. We also note that the agency

granted the appellant’s requests for extensions to complete individual

subcomponents of the critical elements. IAF, Tab 7 at 65-70, 73-75. For all these

reasons, we agree with the administrative judge’s finding that the agency

provided the appellant an adequate opportunity to demonstrate acceptable

performance.

¶10 The appellant further claims that the administrative judge erred in finding

that her performance in Critical Elements 1, 2, and 3 was unacceptable. PFR File,

Tab 1 at 13-16; see ID at 10-17. Specifically, she alleges that the administrative

judge failed to consider the facts as presented in her affidavit. PFR File, Tab 1

that the appellant wanted to meet with her supervisor more often than twice a week, we

find that the agency provided sufficient assistance to the appellant under the

circumstances. See PFR File, Tab 1 at 7.

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at 13-16; see IAF, Tab 24 at 24-32. She also disagrees with the administrative

judge’s determination that she did not submit the report required under Critical

Element 1 on what specific actions were required for the Bureau of Naval

Personnel to become compliant with Navy EEO guidelines by the September 30,

2013 deadline. PFR File, Tab 1 at 14; see IAF, Tab 7 at 77-78. The

administrative judge found that the appellant submitted an initial report, but

failed to submit an updated report implementing the agency’s suggestions and

corrections. ID at 11-12; see IAF, Tab 7 at 69. The appellant further disputes the

administrative judge’s finding that the agency required the appellant to submit a

final executive Sunshine presentation under Critical Element 2 instead of a draft,

as stipulated in the PIP. PFR File, Tab 1 at 15; see IAF, Tab 7 at 78. The

administrative judge found that the PIP required the Sunshine presentation to be

of an acceptable quality, which the appellant’s draft presentation did not meet.

ID at 13-14. We find that the appellant has not adequately explained why the

administrative judge’s factual findings are incorrect and how such factual errors

are material, or of sufficient weight to warrant an outcome different from that of

the initial decision. See 5 C.F.R. § 1201.115. We also find that the

administrative judge properly considered the appellant’s affidavit because she

thoroughly discussed it in the initial decision. ID at 11, 13, 15-17. Therefore, we

agree with the administrative judge that the agency proved the appellant’s

unacceptable performance.

The administrative judge properly found that the appellant failed to prove a

violation of due process.

¶11 Further, the appellant alleges that the administrative judge failed to apply

the proper legal basis to her claim of a due process violation. PFR File, Tab 1

at 10-12. She contends that she was denied a meaningful opportunity to reply to

the proposed removal because the agency denied her access to “her work product

and other related information stored in her computer” by placing her on

administrative leave at the same time as proposing her removal. Id. at 10. The

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appellant argues that the administrative judge erred in finding not credible the

appellant’s allegation that she requested access to materials on her computer. Id.

at 11; see ID at 19. She further claims that the administrative judge limited

discovery on the due process claim to requests for admissions, further preventing

her from having full access to her computer records. PFR File, Tab 1 at 12; see

IAF, Tab 18.

¶12 The administrative judge considered the appellant’s due process arguments

and found that she had received all of the documents supporting the proposed

removal. ID at 19; see IAF, Tab 7 at 80, 85, Tab 27 at 10, 16. The administrative

judge further stated that she was not persuaded that the appellant made a request

to access her files on the computer because she did not make such a request in her

written response. ID at 19-20; see IAF, Tab 7 at 82-90, Tab 27 at 11, 16-17, 22,

24-25. The administrative judge found that the agency afforded the appellant due

process because the appellant received notice, including the evidence file, and she

replied orally and in writing to the deciding official. ID at 20.

¶13 The appellant does not provide a reason to dispute the administrative

judge’s finding that she received due process. See 5 C.F.R. § 1201.115. The

administrative judge properly made a credibility determination consistent with

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). In determining

that the appellant’s assertion that she requested access to materials on her

computer was not credible, the administrative judge appropriately considered the

appellant’s written reply as contradictory evidence. ID at 19; see Hillen,

35 M.S.P.R. at 458. Further, the administrative judge did not abuse her discretion

by limiting the appellant’s discovery on the due process claim to requests for

admissions. See Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 566,

¶ 12 (2010) (finding that an administrative judge has broad discretion, including

the authority to rule on discovery motions); 5 C.F.R. § 1201.41(b)(4). Based on

our review of the record, we agree with the administrative judge’s finding that the

appellant failed to prove her claim of a due process violation.

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¶14 Although we find no due process violation, we still must determine whether

the agency committed a harmful procedural error. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,

in addition to the right to due process, “[p]ublic employees are . . . entitled to

whatever other procedural protections are afforded them by statute, regulation, or

agency procedure”). Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain

an agency’s decision if the appellant “shows harmful error in the application of

the agency’s procedures in arriving at such decision.” An agency’s procedural

error is harmful if it is likely to have caused the agency to reach a conclusion

different from the one it would have reached in the absence or cure of the error.

5 C.F.R. § 1201.4(r). Even assuming that the appellant requested access to

materials on the computer and the agency denied that request, she has not

identified a procedure the agency has violated. The agency complied with OPM’s

required procedures for proposing an action based on unacceptable performance

by providing the appellant advance notice of the removal and an opportunity to

answer the proposal notice. See IAF, Tab 7 at 77-79; see also 5 C.F.R.

§ 432.105(a). Neither has she shown that it is likely that the agency would not

have removed her had she been granted access to the materials on her computer.

Therefore, we find that she has not proven a harmful procedural error.

The administrative judge properly found that the appellant failed to prove her

affirmative defenses of age and disability discrimination.

¶15 Next, the appellant reiterates her claims of age and disability

discrimination. PFR File, Tab 1 at 16-22. She does not provide any new and

material evidence or legal argument, or allege a specific error in the

administrative judge’s findings that she failed to prove these affirmative defenses.

See ID at 23; 5 C.F.R. § 1201.115(d). Based on our review of the record, we

discern no reason to disturb these findings. See Crosby, 74 M.S.P.R. at 105-06.

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The administrative judge properly considered the agency’s close of record

submission.

¶16 Lastly, the appellant alleges that the administrative judge improperly

considered the agency’s untimely close of record submission and failed to

respond to the appellant’s motion to strike such evidence. PFR File, Tab 1

at 12-13; see IAF, Tabs 25, 27. The administrative judge found that the agency’s

submission was timely and denied the appellant’s motion to strike. ID at 20. The

administrative judge stated in the order and summary of the close of record

conference that each party had until September 5, 2014, to respond to the other

party’s submission, IAF, Tab 23 at 12-13, and the record shows that the agency

submitted its response to the appellant’s submission on September 5, 2014, IAF,

Tab 27. We note, however, that the close of record order compelled both parties

to submit their initial close of record submissions by August 28, 2014, including

all evidence and argument related to the issues for which they have the burden of

proof. IAF, Tab 23 at 12. Because the agency has the burden to prove the

elements of a performance-based removal, we find that the portion of the

agency’s submission addressing its removal action was untimely because it

should have been submitted by August 28, 2014. See Lee, 115 M.S.P.R. 533, ¶ 5.

¶17 Although the agency failed to submit a timely close of record submission,

we find that the Board’s regulations permit a party to submit additional evidence

or argument after the close of record in rebuttal to new evidence or argument

submitted by the other party just before the record closed, as occurred in this

case. See 5 C.F.R. § 1201.59(c)(2). The agency argued in its response to the

appellant’s motion to strike that she raised new claims regarding her

performance-based removal that the agency could not have previously addressed.

IAF, Tab 26 at 5-8. Although the appellant raised the general issue of her

performance-based removal in her prehearing submission, IAF, Tab 20, we agree

with the agency that her close of record submission contained new and detailed

allegations not previously raised in this appeal, IAF, Tab 24 at 7-11, 24-30.

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Therefore, we find that the administrative judge properly considered the agency’s

submission and denied the appellant’s motion to strike.

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.