Catherine D. Crider v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CATHERINE D. CRIDER, DOCKET NUMBER

Appellant, SF-0432-14-0451-I-1

v.

DEPARTMENT OF THE NAVY, DATE: April 29, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Catherine D. Crider, Nixa, Montana, pro se.

Diana L. King, Esquire, San Diego, California, 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

sustained her removal for performance-based reasons. Generally, we grant

petitions such as this one only when: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the facts of the case; the administrative 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, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The appellant served as an Administrative Specialist [Senior Project

Business and Financial Manager (BFM)], NO‑4, 2 in the agency’s Scientific and

Technical Reinvention Laboratory Demonstration Personnel system. Initial

Appeal File (IAF), Tab 5 at 26. Her duties required her to assist other Project

BFMs in financial matters; coordinate and respond to data calls; implement

processes, provide advice and recommendations in planning, preparing,

processing, and coordinating tasks in the areas of budget, accounting,

procurements, and contracts; work with others to develop strategies for issues

concerned with funding projections and estimates; review outstanding

commitments and obligations; prepare various reports, track project expenditures,

process funding documents, identify and submit corrections for erroneous

charges, respond to budget and accounting drills and to status requests from

sponsors; prepare, process, execute, and track procurement and contract actions;

and interact with sponsors, contractor personnel, and various departments to

facilitate execution of day-to-day financial and administrative requirements. Id.

2

The appellant has not challenged the administrative judge’s statement that the position

is equivalent to a GS-11. Initial Decision at 1 n.1.

3

at 28. Over a year after her selection in June 2011, a new supervisor began to

perceive issues with the appellant’s performance regarding lack of timeliness and

consistency, and formatting errors. Id. at 32. The appellant’s supervisor

counseled her mid-year, and then formally on May 1, 2013. IAF, Tab 19.

Continuing to find errors in the appellant’s Procurement Requisitions (PR) and

inaccuracies in other of her work products, her supervisor placed her on a 90-day

performance improvement plan (PIP) beginning on June 19, 2013, which included

training, the assignment of a mentor, and weekly meetings with the appellant’s

supervisor. IAF, Tab 20. By notice dated October 23, 2013, the appellant was

informed that she had failed the PIP because she had not demonstrated acceptable

quality in the “Technical” critical element in the tasks of PRs, Outgoing Funding

Documents, Financial Status Reports, Funds Management Reports, and Incoming

Funding Log/PR Log. IAF, Tab 21. The appellant grieved those findings but, on

January 9, 2014, upon review, her second-level supervisor agreed that she had

failed the PIP. IAF, Tab 8. On January 17, 2014, the second-level supervisor

proposed the appellant’s removal for unacceptable performance under 5 U.S.C.

chapter 43, IAF, Tab 6 at 5, and on March 6, 2014, the Head, Business and

Financial Management, concurred that the appellant’s performance was

unacceptable, warranting her removal, effective that day, IAF, Tab 7 at 5.

¶3 On appeal, the appellant challenged the basis for the PIP and for her

removal, arguing that the errors attributed to her were exaggerated and that the

adverse findings regarding her performance were predetermined by her

supervisors. The appellant also alleged that the agency’s action was due to

retaliation based on her whistleblowing activities. IAF, Tab 1 at 7-16. She

requested a hearing. Id. at 1.

¶4 Thereafter, the administrative judge issued an initial decision affirming the

agency’s action. IAF, Tab 26, Initial Decision (ID) at 1, 22. He found that the

agency received approval by the Office of Personnel Management of its

performance appraisal system, ID at 4-5; that the agency apprised the appellant of

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her performance standards which provided measurable benchmarks, ID at 5-6,

notified her of her unacceptable performance, and gave her a reasonable

opportunity to improve, ID at 6-8; and that her performance during that period

was unacceptable, ID at 9-13. The administrative judge considered, but found

unsupported, the appellant’s claim that the agency’s action was taken in

retaliation for her protected activity; namely, her disclosing a misappropriation of

funds by the agency and nepotism. ID at 13‑21.

¶5 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the

appellant has submitted a reply thereto, PFR File, Tab 6.

¶6 On review, the appellant challenges the administrative judge’s finding that

the agency presented substantial evidence that it notified her of her unacceptable

performance and gave her a reasonable opportunity to improve. 3 Specifically, the

appellant disputes the administrative judge’s reliance on the testimony of the

Project BFM assigned to meet with the appellant twice weekly during the PIP

period in a mentoring role to the effect that she did not take advantage of the

meetings and seemed defensive and distracted. ID at 8. The appellant asserts

that the testimony “lacks integrity.” PFR File, Tab 1 at 17. To the extent that the

appellant is attacking the witness’s credibility, it is well established that the

Board must defer to an administrative judge’s credibility determinations when

they are based, explicitly or implicitly, on the observation of the demeanor of

witnesses testifying at a hearing; the Board may overturn such decisions only

when it has “sufficiently sound” reasons for doing so. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); Little v. Department of

Transportation, 112 M.S.P.R. 224, ¶ 4 (2009) (explaining that when an

administrative judge has heard live testimony, his credibility determinations must

3

For purposes of clarity, we have addressed and analyzed the appellant’s arguments on

review in a different order from that in which they were raised.

5

be deemed to be at least implicitly based upon the demeanor of the witnesses). In

the absence of any such reason, the appellant has not shown that the

administrative judge erred in finding that, in its mentoring during the PIP period,

the agency afforded the appellant a reasonable opportunity to improve. 4

Moreover, as noted, the agency afforded the appellant a 90-day PIP. IAF, Tab 20.

The Board has found that even a 30-day PIP can satisfy an agency’s obligation to

provide an employee with a reasonable opportunity to demonstrate acceptable

performance. Towne v. Department of the Air Force, 120 M.S.P.R. 239,

¶ 10 (2013).

¶7 On review, the appellant also challenges the administrative judge’s finding

that her performance during the opportunity to improve period was unacceptable.

PFR File, Tab 1 at 18-26. The appellant argues, as she did below, that the errors

for which she was cited were not “true errors,” but rather petty discrepancies

regarding formatting, typographical errors involving, for example, addresses,

telephone and/or facsimile numbers, and that they were exaggerated, fabricated,

unfair, and unreasonable. Id. at 18, 23. She also disputes the number of errors

the agency asserts she made in connection with the five tasks listed under the

“Technical” critical element. Id. at 20‑22.

¶8 The performance standards for acceptable results in each of the five tasks

under the “Technical” critical element require the accurate submission of

documents and reports, as well as strict adherence to specific guidelines and

templates, and no more than two errors per document or report with the same type

of errors not subsequently repeated. IAF, Tab 20. In finding that she had failed

4

In an effort to counter her mentor’s testimony that she was defensive and distracted,

the appellant offers, as new and material evidence on this issue, a November 21, 2012

email she sent to her first-line supervisor which, in the appellant’s view, shows that she

was easy to work with. PFR File, Tab 1 at 28. Because this evidence predates the PIP

period by 6 months, it is neither new, Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

214 (1980), nor material, Russo v. Veterans Administration, 3 M.S.P.R. 345,

349 (1980).

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the PIP, the Head, Business and Financial Management pointed out that the

appellant had exceeded the allowable number of errors in 61% of the PRs, 41% of

the Outgoing Funding Documents, 35% of the Financial Status Reports, and

66% of the Funds Management Reports, and that she had repeated the same type

of errors. The Head, Business and Financial Management also noted that the

appellant failed to update the Incoming Funding Log by the end of each work

week as required and had more than the allowable number of errors in certain

branches every week of the PIP period, and that, in 10 of the 12 weeks, there

were more than the allowable number of errors on the PR log, some of which

were repeated. IAF, Tab 21.

¶9 Although the appellant challenges the agency’s assessment of the precise

number of errors she made, she has neither alleged nor shown that she routinely

met the standard of no more than two errors per document or report or that she

did not repeat certain errors. And while, in her view, the errors were petty,

constituting only minor discrepancies, the Board generally defers to managerial

discretion in determining what agency employees must do to perform acceptably

in their positions. See Jackson v. Department of Veterans Affairs, 97 M.S.P.R.

13, ¶ 14 (2004). Bearing in mind that the agency’s burden of proof in a

performance action taken under chapter 43 is relatively low, substantial

evidence, 5 5 U.S.C. § 4302(b), the appellant has not shown error in the

administrative judge’s finding that the specific and well-documented information

regarding the appellant’s numerous errors and omissions constitutes more than

substantial evidence that she performed unacceptably during the PIP period in the

five tasks under the “Technical” critical element. 6

5

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).

6

The appellant challenges the administrative judge’s statement that her performance

during the 2012 rating year was “below expectations.” PFR File, Tab 1 at 25-26; ID

at 20. In fact, the appellant received an acceptable performance rating for the rating

7

¶10 On review, the appellant also challenges the administrative judge’s findings

regarding her claim that the agency’s action was taken in retaliation for her

protected activity. The administrative judge first addressed the appellant’s claim

that, in a grievance she filed over a 2012 Letter of Requirements she received

regarding her usage of leave during a period when she was unfunded, she stated

that a prior supervisor had instructed her that, under such circumstances, she was

to charge her time to certain project overhead funds. The appellant stated that she

had refused to follow the instruction, believing such practice to be a

misappropriation of funds. IAF, Tab 15, Part D at 6. The administrative judge

found that, even assuming that the appellant had made a protected disclosure in

this regard, there was no evidence that management personnel involved in her

removal were aware of it, much less that it was a contributing factor in that

action, or the source of any motivation to retaliate against her because of it. ID

at 16-17. The appellant argues that, on the contrary, her first- and second-level

supervisors, who were heavily involved in her removal, were also both directly

period July 1, 2011, to June 30, 2012, but she was deemed not to have met expectations

in “Teamwork and Communication,” and “Leadership,” and, under the “Technical”

critical element, she was cautioned to review her work more thoroughly to avoid

needless errors, although she was deemed to have met expectations. IAF, Tab 5 at 38.

The appellant’s overall rating was deemed insufficient to support a pay raise for her

during that rating year. Id. at 41. In any event, to the extent the administrative judge’s

statement was not a model of clarity, the appellant has not shown that any such error

was prejudicial to her substantive rights. Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984). In an effort to counter the administrative judge’s findings

regarding her performance, the appellant also argues that her performance prior to the

PIP was not below standard and that the ratings she received from other supervisors

were superior or better, but that the administrative judge did not consider these earlier

ratings. PFR File, Tab 1 at 6-7, 23. However, an agency is not estopped by a prior

satisfactory appraisal from taking a performance-based action against an employee at

any time during the appraisal cycle, when, as here, her performance in any critical

element becomes unacceptable. See Lee v. Department of Labor, 110 M.S.P.R. 355,

¶ 11 (2008). Moreover, the administrative judge’s failure to mention all of the evidence

of record does not mean that he did not consider it in reaching his decision. Marques v.

Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d

1062 (Fed. Cir. 1985) (Table).

8

involved in the grievance review process. PFR File, Tab 1 at 14-15. While it is

true that both supervisors were named in the grievance, neither was alleged to

have violated any law, rule, or regulation in connection with the leave matter of

which the appellant complains. IAF, Tab 15, Part D at 6. Notwithstanding, to the

extent the administrative judge erred in finding that the appellant did not establish

that this disclosure, assuming it was protected, was a contributing factor in her

removal, she did not establish, as set forth below concerning her other disclosure,

that the administrative judge erred in finding that the agency showed by clear and

convincing evidence that it would have removed the appellant, even absent her

disclosures. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

¶11 The administrative judge also addressed the appellant’s claim that, in

another 2012 grievance she filed over a notice of proposed suspension for

inappropriate conduct, she reported nepotism; specifically, that the agency

employed the niece of her second-level supervisor, within her chain of command.

IAF, Tab 5, Part D at 86-95. The administrative judge found that the appellant

did make a protected disclosure of which certain involved management officials

were aware and that the agency took action against her within such time to

support a finding that it was a contributing factor in her removal, but that the

agency showed by clear and convincing evidence that it would have removed her,

even in the absence of her disclosure. ID at 17-21. On review, the appellant

challenges the administrative judge’s finding that there was no evidence of any

actual motive to retaliate against the appellant on the part of her first-level

supervisor, that individual’s first-line supervisor, or the appellant’s second-level

supervisor. ID at 20-21; PFR File, Tab 1 at 13. The administrative judge found

that the matter of the appellant’s second-line supervisor’s niece’s employment

had been addressed and resolved by the agency in 2010, well before the appellant

raised the matter in her 2012 grievance and that, therefore, her disclosure

would not have raised any new issues or caused the second-level supervisor or

anyone else any particular embarrassment or additional effort. ID at 20. The

9

appellant has not challenged this finding, and we agree that it weighs in the

agency’s favor. Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999) (in determining whether the agency has met its clear and

convincing burden, the Board will consider the relevant factors, including (1) the

strength of the agency’s evidence in support of its action; (2) the existence and

strength of any motive to retaliate on the part of the agency officials involved in

the decision; and (3) any evidence that the agency takes similar actions against

employees who did not engage in such protected activity, but who are otherwise

similarly situated).

¶12 The appellant also disputes the administrative judge’s finding as to the third

Carr factor. Specifically, the appellant challenges the administrative judge’s

findings that there was no evidence that the appellant’s second-level supervisor’s

niece made similar mistakes and that the evidence regarding errors made by

another Contracting Specialist was, at best, anecdotal and otherwise insufficient

to establish that he was similarly situated to the appellant. ID at 21; PFR File,

Tab 1 at 24, 19. The appellant references several errors made by her second-level

supervisor’s niece that she pointed out in one of her grievances, IAF, Tab 15,

Part D at 92, and several errors made by the other Contracting Specialist, id.,

Part C at 89-95. While it appears that these two individuals did not engage in

protected activity and were not penalized for their performance, there is no

evidence that the errors they committed were as extensive as those the appellant

committed, and, for that reason, we agree with the administrative judge that they

were not similarly situated to her. We further agree, weighing the Carr factors

together, that the agency proved by clear and convincing evidence that it would

have removed the appellant, even absent her protected disclosures.

¶13 Next, the appellant raises a number of alleged adjudicatory errors on the

part of the administrative judge. According to the appellant, her 300-page

prehearing submission somehow became “misaligned” during copying and was

determined by the administrative judge to be in disorder at the prehearing

10

conference, such that he requested that the appellant send another copy directly to

him prior to the hearing, which she did. The appellant argues that the prehearing

conference should have been rescheduled until after the administrative judge had

an opportunity to receive and review the new package. PFR File, Tab 1 at 2. The

record does not reflect that the appellant made such a request during the

prehearing conference or thereafter, within the time allotted by the administrative

judge for submitting exceptions to his summary of the conference. IAF, Tab 18.

The appellant’s failure to complain then precludes her from doing so on review.

See Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7 (2012). In any event, the

administrative judge was able to review the preliminary version of the appellant’s

prehearing submission, which, although in disorder, was sufficient for him to

adequately review the appellant’s claims before the prehearing conference.

¶14 The appellant further argues on review that an Employee Relations

Specialist did not appear to testify at the hearing, even though he “was

specifically named in my appeal for harmful procedural error and neglect which

contributed to my removal from service,” PFR File, Tab 1 at 5, and that she was

denied the opportunity to question him, PFR File, Tab 6. The record reflects that,

although the appellant submitted a number of documents in apparent response to

the administrative judge’s Order and Notice of Hearing and Prehearing

Conference, IAF, Tab 17, she did not furnish a list of witnesses with a detailed

summary of the expected testimony of each, as ordered by the administrative

judge, IAF, Tab 9. The agency did submit such a list, however, and it included

the Employee Relations Specialist as a witness. IAF, Tab 11. The administrative

judge provisionally approved him, “if his testimony becomes necessary,” IAF,

Tab 18, but, during the hearing, the agency decided not to present him as a

witness. First, the appellant did not object to the administrative judge’s summary

of telephonic prehearing conference despite being advised that she could do so,

IAF, Tab 9, and her failure to do so precludes her from raising any such objection

now. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Moreover,

11

because the appellant did not herself request the Employee Relations Specialist as

a witness, she cannot complain when the agency changed its mind about

presenting the testimony of its own witness.

¶15 Finally, the appellant argues on review that the delay in processing the

appeal from the date of the hearing to the issuance of the initial decision was

unfair and should be considered “unacceptable.” PFR File, Tab 1 at 1. Given

that the administrative judge had access to the complete record, including the

appellant’s voluminous submissions and the hearing compact disc, we find that

the appellant has not shown that any delay constituted an adjudicatory error that

prejudiced her substantive rights. Panter, 22 M.S.P.R. at 282.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court

has held that normally it does not have the authority to waive this statutory

deadline and that filings that do not comply with the deadline must be dismissed.

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U.S. Court of Appeals for the

Federal Circuit or any court of appeals of competent jurisdiction. The court of

appeals must receive your petition for review within 60 days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose to request review of the

12

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not both. Once you choose to seek

review in one court of appeals, you may be precluded from seeking review in any

other court.

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information about the U.S. Court of Appeals for the Federal Circuit is

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained

within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional

information about other courts of appeals can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. 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.