Opinion

James Cusic v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Mar 9, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES G. CUSIC, III, DOCKET NUMBER

Appellant, DE-0752-14-0385-I-1

DEPARTMENT OF THE AIR FORCE, DATE: March 9, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eloise R. Stripling, Lackland Air Force Base, Texas, for the appellant.

Charles R. Vaith, Esquire, Randolph Air Force Base, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

following circumstances: 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 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. 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 init ial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 Between 2007 and the time of the action under appeal, the appellant

encumbered the positon of Training Instructor (Pararescue), GS-11, at Kirkland

Air Force Base. Initial Appeal File (IAF), Tab 5 at 70-77. He was responsible

for providing Pararescue (PJ) training and Combat Rescue Officer (CRO)

training, id. at 71, and, in connection therewith, was required to successfully

maintain training requirements for the position. Id. at 76. To teach a course,

instructors were required to have a teaching qualification (TQ), or be teaching

qualified (TQ’d) in the course by passing all measurements and conducting a

qualification evaluation in a given block of instruction. Id. at 93. The PJ course

and the CRO course shared a number of specific training blocks, but the CRO

course also included a Ground Force Commander Training block.

¶3 Early in 2013, based on concerns regarding the appellant’s subject matter

knowledge, his supervisor reviewed the database for evaluations and testing and

discovered that the appellant had failed a CRO evaluation in 2009. Hearing

Transcript (HT) II at 140-46 (testimony of the appellant’s supervisor). Although

the appellant had passed several reevaluations, the supervisor was advised by the

Instructional Supervisor who had administered the reevaluations that they did not

accurately reflect the appellant’s performance. For that reason, and based on

concerns expressed by students about the appellant’s teaching skills, id., he was

reassigned from teaching the CRO course to performing other duties. HT II

at 20-23 (testimony of Chief Instructor), 139 (testimony of the appellant’s

supervisor). Subsequently, the Squadron Commander directed that the appellant

be remediated back into the CRO instruction block. HT II at 240 (testimony of

the deciding official); HT I at 18 (testimony of CRO Instructor Supervisor).

After several months of remediation, the appellant was required to perform his

qualification evaluation, a mock lesson of four specific measurements 3 under the

Ground Force Commander Training block. He failed to successfully perform

these measurements. IAF, Tab 5 at 57-58; HT I at 66-67 (testimony of CRO

Instructor Supervisor). A few days later, the appellant again attempted the same

qualification evaluation and again failed all four measurements. IAF, Tab 5

at 46-47; HT I at 67 (testimony of CRO Instructor Supervisor). The Chief

Instructor notified the appellant of the results and of his recommendation that the

appellant’s remediation be discontinued. IAF, Tab 5 at 40. Thereafter, on

March 24, 2014, based on the unsuccessful results of these two qualification

evaluations, the agency proposed the appellant’s removal due to his failure to

maintain his TQ, a condition of his employment. Id. at 31-34. The agency issued

a decision letter on May 1, 2014, id. at 13-15, and effected the action that same

day. Id. at 12.

¶4 On appeal, the appellant did not dispute that he failed both evaluations.

HT I at 67, 71 (exchange during testimony of CRO Instructor Supervisor). The

appellant argued, however, that being TQ’d in a CRO block of instruction is not a

The four measurements were (a) perform visual signals, (c) use execution checklist

and brevity codes, (d) perform communications phraseology, and (g) use inter -team

radios. IAF, Tab 5 at 57-58.

requirement of his position, that he was hired as a PJ instructor and was TQ’d in

PJ courses, that he was not allowed a sufficient amount of time to prepare for the

evaluations, and that the agency was required to, but did not, place him on a

performance improvement plan (PIP). IAF, Tab 1at 6. He also alleged that the

agency’s action was retaliatory based on his having filed several grievances. Id.

He requested a hearing. Id. at 2.

¶5 Thereafter, the administrative judge issued an initial decision, IAF, Tab 30,

Initial Decision (ID), in which he found the charge sustained in that the agency

showed by preponderant evidence that being TQ’d in the CRO course was a

condition of the appellant’s appointment, that he was provided a reasonable

amount of time to become TQ’d in the Ground Force Commander Training block,

and that, because he failed the certification at least twice, the agency acted

reasonably in not recertifying him for his teaching position. ID at 10-15. The

administrative judge further found that the agency established that a nexus existed

between the sustained charge and the efficiency of the service. ID at 15.

¶6 The administrative judge then addressed the appellant’s affirmative defense

that the agency’s action was in retaliation for his having filed several grievances.

The administrative judge found that it was undisputed that the appellant had

engaged in protected union activity, ID at 16, but that he had provided no

evidence to support his assertion that he was removed because of his union

activity or that his union activity played any role whatsoever in his removal. ID

at 16-17. Accordingly, the administrative judge found that the appellant did not

show that the agency retaliated against him as alleged. ID at 17.

¶7 Finally, in considering the reasonableness of the penalty, the administrative

judge addressed the particular factors set forth by the Board as most relevant in

an adverse action resulting from an employee’s failure to maintain a condition of

employment; namely, the nature of the offense, its effect on the employee’s job

performance, and the availability and effect of alternative sanctions. Penland v.

Department of the Interior, 115 M.S.P.R. 474, ¶ 8 (2010); ID at 17. The

administrative judge considered the deciding official’s discussion of these factors

in his letter of decision, IAF, Tab 5 at 17, 19, 22-23, as well as his hearing

testimony, HT I at 238, and concluded that his articulated reasons amply

supported the penalty of removal. ID at 17-18. As such, the administrative judge

affirmed the agency’s action. ID at 1, 18.

¶8 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 filed a reply. PFR File, Tab 4.

¶9 When a charge consists of an agency’s withdrawal or revocation of its

certification or other approval of an employee’s fitness or other qualifications to

hold his position, the Board’s authority generally extends to a review of the

merits of that withdrawal or revocation. Adams v. Department of the Army,

105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). That

review includes whether the job requirement was necessary for the appellant to

perform his duties, whether there was a nexus between his loss of certification or

approval and the efficiency of the service, and whether the agency’s decision to

remove him was reasonable. Id., ¶ 19.

¶10 As to whether the appellant’s being TQ’d in CRO is a requirement of his

position, the administrative judge found that it was in large part based on the

appellant’s significant military experience that he was hired in 2007 to develop

and teach the CRO course, HT I at 78-79 (testimony of CRO Instructor

Supervisor); that he was receiving consistent qualifications within the CRO

course beginning in 2009 and continuing thereafter, id. at 80; that, while his title

refers only to pararescue, the title is outdated, his position description states that

he will be teaching “PJ/CRO apprentice qualification courses,” IAF, Tab 5 at 71,

and there is no separate position description for a CRO instructor, HT I at 185-86

(testimony of CRO Instructor Supervisor); and that the appellant had been

teaching the CRO course because otherwise the agency would have had no need

to remove him from those duties and subject him to remediation. ID at 11.

¶11 On review, the appellant argues that the administrative judge failed to

identify any objective evidence to support his findings and offered no discussion

“of a credibility determination” regarding the testimony on that topic. PFR File,

Tab 1 at 5. On the contrary, the administrative judge considered testimony

offered by the agency, as noted above, as well as documentary evidence,

specifically, the appellant’s core personnel document (position description), to

support his finding that being TQ’d in CRO is a condition of the appellant’s

employment. ID at 11. The appellant argues that, although he and other civilian

instructors worked under the same core personnel document, he was the only one

who was required to be TQ’d in CRO to keep his job. PFR File, Tab 1 at 5.

However, no others were assigned to that particular block of instruction in the

CRO course, Ground Force Commander Training. Because the appellant was so

assigned, he was required to be TQ’d in that block. HT II at 77 (testimony of

Chief Instructor). The appellant has pointed to no contrary testimony on this

point, and it therefore raised no credibility issue for the administrative judge to

resolve.

¶12 In a related issue, the appellant argues that he was not required to be TQ’d

in the particular block of instruction because he was never decertified. PFR File,

Tab 1 at 1-3. The administrative judge found that, while apparently no

decertification document was entered into the system, the appellant was, for all

intents and purposes, decertified because it is undisputed that he was barred from

teaching CRO courses in February 2013, and that, by August 2013, he was

informed that he was decertified and had to be remediated and TQ’d before he

would be allowed to be an instructor. ID at 12-13, 15. The appellant argues on

review that the administrative judge based his conclusion that the appellant had

been decertified on the implication that the individual who administered the

training database was complicit in ensuring that the decertification document was

not entered into the database because that individual was reprimanded for

manipulating records, after being accused of entering into the system successful

reevaluations of the appellant’s subject matter knowledge that supposedly did not

truly reflect his performance. PFR File, Tab 1 at 1-3; ID at 12.

¶13 In support of his claim of error in the administrative judge’s findings in this

regard, the appellant has submitted what he describes as new and material

evidence in the form of an arbitration award involving that individual wherein the

arbitrator found no deceptive behavior on his part and mitigated the penalty to an

admonishment. PFR File, Tab 1 at 2, 10-18. The proffered evidence is new in

that the award was issued after the record closed below. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980) (finding that under 5 C.F.R. § 1201.115, the

Board generally will not consider evidence submitted for the first time with the

petition for review absent a showing that it was unavailable before the record was

closed despite the party’s due diligence). However, although the arbitrator found

no deceptive behavior on the part of the grievant, PFR File, Tab 1 at 18, he did

find that the grievant caused erroneous information to be entered into the

appellant’s training records. Id. at 17. More importantly, though, the

administrative judge specifically made his findings in this matter

“[n]otwithstanding the issue regarding [that individual].” ID at 12. Therefore,

the proffered evidence is not material and we will not consider it. Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board

generally will not grant a petition for review based on new evidence absent a

showing that it is of sufficient weight to warrant an outcome d ifferent from that

of the initial decision).

¶14 Finally, the appellant disputes on review the administrative judge’s finding

that he was afforded sufficient time to prepare for the evaluations. PFR File,

Tab 1 at 6-7. The appellant contends, as he did below, IAF, Tab 1 at 6, that he

was only afforded 10 days, whereas under the Air Education and Training

Command Instruction 36-2202, section 35, he was entitled to 120 days to prepare.

IAF, Tab 5 at 89. The administrative judge considered this provision but , relying

on the testimony of the Chief of Faculty Development, HT II at 179 -80, and the

administrative judge’s own reading of the provision, he found that, when the

appellant was remediated, he was not an initial instructor or completing an initial

TQ and was also not a returning instructor. ID at 12. Rather, he was a current

instructor to whom the cited provisions did not apply. Even if we were to

consider that another provision might arguably be interpreted to allow the

appellant additional time to prepare, he has not shown error in the administrative

judge’s finding as to the clear reading of section 35. Moreover, the

administrative judge found that the appellant was, in fact, afforded substantially

more than 10 days to prepare for the evaluations because, although his TQ plan

actually began on November 16, 2013, he knew as early as August 23, 2013 , that

he would be remediated back into the CRO course, and that, at that time, he was

provided all the necessary written materials and was relieved of some of his other

duties so that he could devote his time to prepare for the evaluation. ID at 13.

The administrative judge further found that the appellant had assistance

throughout his preparation from the Chief Instructor, the CRO Instructor

Supervisor, and a fellow student instructor. ID at 14. The appellant has not

challenged these findings on review. 4

¶15 We conclude, therefore, that the appellant has not shown error in the

administrative judge’s findings that the agency showed by preponderant evidence

that being TQ’d in the CRO course was a requirement of the appellant’s position,

The administrative judge further found that the appellant was not entitled to a formal

PIP because the agency fairly chose to take the performance-based action under

5 U.S.C. chapter 75, not chapter 43. ID at 14-15. The appellant has not challenged this

finding on review and specifically acknowledged in his reply to the agency’s response

that he did not do so, stating that the matter is “irrelevant.” PFR File, Tab 4 at 11.

Nonetheless, in that reply, the appellant does challenge the administrative judge’s

finding, positing that McGillivray v. Federal Emergency Management Agency,

58 M.S.P.R. 398 (1993), upon which the administrative judge relied, supports his

position. PFR File, Tab 4 at 12-13. However, unlike the situation in McGillivray, there

was no evidence of the appellant’s performance standards and no evidence that the

agency charged that he should have performed better than the standards in his

performance appraisal plan required.

that it provided him a reasonable amount of time to become TQ’d in the particular

training block cited, that he failed the certification twice, and that therefore the

agency acted reasonably in not recertifying him for his teaching position. 5

Adams, 105 M.S.P.R. 50, ¶¶ 10, 19. Accordingly, the initial decision is affirmed.

NOTICE OF APPEAL RIGHTS 6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

The appellant has not challenged on review the administrative judge’s finding that he

failed to establish his affirmative defense that the agency’s action was in retaliation for

his having engaged in union activity. We discern no basis upon which to disturb the

administrative judge’s well-reasoned findings. Mattison v. Department of Veterans

Affairs, 123 M.S.P.R. 492, ¶ 8 (2016).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any mat ter.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in s ection

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.