Appendix — Yanopoulos v. Department of the Navy

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85-2056 Jun 14 08

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THEODORE YANOPOULOS,

Petitioner,

Vv.

DEPARTMENT OF THE NAVY and

MERIT SYSTEMS PROTECTION BOARD,

Respondents.

APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

JEFFREY A. VOGELMAN

BALLENGER AND VOGELMAN

123 South Royal Street

Alexandria, VA 22314

(703) 683-6304

Counsel for Petitioner

ee ~ “ a ll ened 4 ile Ae ee ee ee ee Pe eg eS ee 4 eo

TABLE OF CONTENTS

ITEM PAGE

Opinion of U.S. Court

of Appeals for the

Federal Circuit,

entered January 28,

1986 1

Order of Merit Systems

Protection Board

entered April 30,

1985 12

Initial Decision of

MSPB Presiding Official

William C. Jenkins

entered February 17,

1983 16

Supplemental Initial

Decision of MSPB

Presiding Official

William C. Jenkins

entered February 1,

1985 37

Judgment of U.S. Court

of Appeals for the

Federal Circuit dated

Tanuary 28, 1986 41

Order of United States

Court of Appeals for

the Federal Circuit

denying petition for

rehearing entered

March 19, 1986 42

Initial Order of MSPB

entered October 12,

1982 43

Order for Hearing

of MSPB entered

November 1, 1982

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

THEODORE YANOPOULOS,

Petitioner, Appeal

No. 85-2592

DEPARTMENT OF THE

)

Vv. )

)

NAVY )

)

Respondent.

DECIDED: January 28, 1986

Before FRIEDMAN, Circuit Judge,

COWEN, Senior Circuit Judge,

and BENNETT, Circuit Judge.

PER CURIAM.

DECISION

The Merit Systems Protection Board

(MSPB or Board) decision, 27 M.S.P.R. 647

(1985), sustaining the decision of the

Department of the Navy (agency) to remove

petitioner from his position because of

unacceptable performance, is affirmed.

OPINION

Petitioner served as an electronic

engineer until the agency removed him from

the federal service because of unaccept-

able performance, effective October l,

1982. On appeal before the MSPB, at which

petitioner appeared pro se, the presiding

official sustained the agency's decision

and the full Board denied petitioner's

request for review. Petitioner does not

challenge on appeal to this court the

sufficiency of the evidence to support his

removal for unacceptable performance, but

rather asserts a number of procedural

errors in the conduct of his hearing

before the MSPB.

Petitioner asserts that the MSPB

failed to adequately apprise him either of

his statutory "right to counsel" granted

under 5 U.S.C. § 7701(a){(2), or of the

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nature of the MSPB's proceedings. Section

7701(a)(2) provides that an employee

appealing to the MSPB shall have the right

"to be represented by an attorney or other

representative.” The statute is not

strictly a "right to counsel" as peti-

tioner would seem to suggest, but is

written broadly to confer a "right to

representation" of the employee's choice,

which may or may not be an attorney

licensed to practice law.

We find that the MSPB adequately

informed petitioner of his statutory right

to representation. The MSPB Appeal Form

(Optional Form 283), on which petitioner

filed his appeal with the MSPB states very

clearly, just above petitioner's signature

that:

27. YOU HAVE THE RIGHT TO DESIGNATE

SOMEONE TO REPRESENT YOU ON THIS

APPEAL IF HE/SHE AGREES TO DO SO.

THIS PERSON DOES NOT HAVE TO BE

AN ATTORNEY * * *,

The MSPB acknowledged receipt of peti-

tioner's appeal by mailing an Initial

Order, dated October 12, 1982, which again

stated that if petitioner wished to be

represented, he should file a Designa-

tion of Representative form with the

Board. Contrary to petitioner's asser-

tion, these forms do not discourage

federal employees appealing to the MSPB

from seeking representation by attorneys.

The wording of the form that the "person

does not have to be an attorney," would

clearly imply that the person may be an

attorney, if the employee so desired.

Furthermore, the record in this case

indicates that petitioner in fact actually

knew of his right to be represented by an

attorney, in any event. On November 30,

1982, petitioner sent a handwritten note

to the MSPB's presiding official stating

that "I will secure a counsel to conduct

discovery." This evidence vitiates his

argument that the MSPB did not adequately

inform him of that right.

We also find that the MSPB ade-

quately informed petitioner of the nature

of the proceedings. In the Initial Order,

which the MSPB sent petitioner on October

12, 1982, the presiding official outlined

the Board's rules of procedure. Three

attachments were included with that order

that fully discussed discovery procedures,

such as production of documents. On

November 1, 1982, the presiding official

sent petitioner an Order for Hearing,

which established the date and time for

the hearing, discussed time limits for

motions, and in an attachment, fully

discussed the procedures for arranging the

appearance of witnesses at the hearing.

Taken as a whole, these forms would cer-

tainly provide a federal employee

appealing to the MSPB sufficient notice of

the nature of the proceedings.

More importantly, however, we find it

incredible that this petitioner would not

know of the nature of an MSPB hearing. He

had been a federal employee for 3l years

and had attained the level of GS-12. The

agency had recently removed him from the

federal service through a very lengthy and

formal process that must have impressed

upon petitioner the nature of this action.

In light of his tenure as a federal

employee, his level of intelligence

presumed from his rank, and the formality

of the process used to remove him from the

federal service, petitioner must have

known the nature of the MSPB's adjudica-

tion of his appeal.

No statute or regulation requires the

MSPB to appoint a representative for

employees appealing to the Board. Mar-

sheck v. Department of Transportation, 15

M.S.P.R. 423 (1983). The MSPB having

adequately informed petitioner of both his

right to representation, and the nature of

the proceedings, petitioner was obligated

to secure his own representation, if he so

desired. Thompson v. United States Coast

Guard, 11 M.S.P.R. 461 (1982). Petitioner

voluntarily chose to proceed pro se and must

accept the consequences of that decision.

Petitioner also contends that he did

not receive a full and fair hearing before

the MSPB's presiding official. First,

petitioner argues that the presiding

official denied petitioner's right to call

four witnesses. Second, petitioner claims

that the presiding official inappro-

priately allowed agency's counsel to prove

its case through extensive use of leading

questions. We reject both these asserted

grounds.

Petitioner argues that his letter of

December 7, 1982, stating that: "I wish to

have available for me a presently unknown

number of witnesses called by my Agency,"

was adequate notice to the presiding

official to require the appearance of four

witnesses petitioner sought to testify.

On November 1, 1982, however, the presid-

ing official sent petitioner an Order for

Hearing, which included an attachment

outlining the procedures for arranging the

appearance of witnesses. Petitioner did

not attempt to arrange for the appearance

of these four witnesses voluntarily, as is

the first step in the procedures. Nor did

petitioner seek to cooperate with the

agency in arranging for these witnesses to

appear at the hearing; this is the second

step. Nor do we read petitioner's letter

eS. - ~~

of December 7 as a request to issue

subpoenas to compel the appearance of

these witnesses.

Having neglected to follow the MSPB's

procedures for arranging the appearance of

witnesses in the manner clearly outlined

in the presiding official's Order for

Hearing, petitioner was unable to show the

presiding official good cause to require

those witnesses to appear. The failure to

arrange for those witnesses was peti-

tioner's own fault. We find no error in

the presiding official's denial of peti-

tioner's request, made on the day of the

hearing, that four witnesses be compelled

to appear.

As for the use of leading questions

by the agency's counsel, we find that the

petitioner has failed to sufficiently

persuade us that he was prejudiced by this

practice. Although the Federal Rules of

)

Evidence do not apply to Board hearings,

Debose v. United States Department

of Agriculture, 700 F.2d 1262, 1268 (9th

Cir. 1983), they are a helpful guide to

what might be considered proper hearing

practices. Even the Federal Rules of

Evidence, which apply in stricter and more

formal trial proceedings, allow for the

use of leading questions to develop

testimony. FE,R. Evid. 611. We find no

error in the presiding official allowing

the agency's counsel to use leading

questions in this case.

Finally, we find that the presiding

official fulfilled his obligation to

assume a more active role in helping the

petitioner in this case, because peti-

tioner appeared pro se. Sims v. Harris,

631 F.2d 26, 28 (4th Cir. 1980). Here the

presiding official assisted petitioner in

a number of ways, including helping peti-

tioner in the questioning of witnesses,

and in making opening and closing

statements.

Conclusion

For the reasons stated above, the

decision of the MSPB is affirmed.

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THEODORE YANOPOULOS ) DOCKET NUMBER

) DCO04328310008

v. )

)

DEPARTMENT OF THE ) Date: April 30,

NAVY ) 1985

ORDER

Having fully considered the appel-

lant's petition for review of the initial

decision issued on February 17, 1983, and

finding that it does not meet the criteria

for review set forth at 5 C.F.R.

§ 1201.115, the Board hereby DENIES the

——eo ee ™—~—“—SC~;COU

petition.*/

This is the final order of the Merit

Systems Protection Board in this appeal.

The initial decision shall become final

five (5) days from the date of this order.

5 C.F.R. § 1201.113(b).

The appellant has the statutory right

under 5 U.S.C. § 7702(b)(1) to petition

the Equal Employment Opportunity Commis-

sion (EEOC) for consideration of the

Board's final decision, with respect to

claims of prohibited discrimination. The

*/ Appellant's claim that the hearing

! was unfair is without merit. Appellant

; had a right to secure an attorney or other

4 representative to represent him and he

must abide by the consequences of his

; decision. Thompson v. United States Coast

: Guard, 10 MSPB 397 (1982).

i In reaching this conclusion, the

Board concurs with the presiding official

that the agency afforded appellant a

reasonable opportunity to improve his

. performance. See Sandland v. General

Services Administration, 23 M.S.P.R. 583

(1984).

statute requires at 5 U.S.C.

§ 7702(b) (1) that such a petition

be filed with the EEOC within

thirty (30) days after notice

of this decision.

If the appellant elects not

to petition the EEOC for further

review, the appellant has the

statutory right under 5 U.S.C.

§ 7703(b) (2) to file a civil action

13a

in an appropriate United States District

Court with respect to such prohibited

discrimination claims. The statute re-

guires at 5 U.S.C. § 7703(b)(2) that such

a civil action be filed in a United States

District Court not later than thirty (30)

days after the appellant's receipt of this

order. In such an action involving a

claim of discrimination based on race,

color, religion, sex, national origin, or

a handicapping condition, the appellant

has the statutory right under 42 U.S.C. §§

2000e5(£) - (k), and 29 U.S.C. § 794a, to

request representation by a court-

appointed lawyer, and to request waiver of

any requirement of prepayment of fees,

costs, or other security.

If the appellant chooses not to

pursue the discrimination issue before the

EEOC or a United States District Court,

the appellant has the statutory right

under 5 U.S.C. § 7703(b)(1) to seek judi-

——sy

—_

ON a 8 a ae A LAPD Ke ALD As AOR AEA i

LAL ADAG Mh FLORES.

ib id Sod apache VR, en thlbe tx

cial review, if the court has jurisdic-

tion, of the Board's final decision on

issues other than prohibited discrimina-

tion before the United States Court of

Appeals for the Federal Circuit, 717 Madi-

son Place, N.W., Washington, D.C. 20439.

The statute requires at 5 U.S.C.

§ 7703(b)(1) that a petition for such

judicial review be received by the court

no later than thirty (30) days after the

appellant's receipt of this order.

FOR THE BOARD:

Robert E. Taylor

Clerk of the Board

Washington, D.C.

ee ee ee

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION

WASHINGTON REGIONAL OFFICE

THEODORE YANOPOULOS CASE NO.

DC04328310008

Vv.

Date: Feb. 17,

1983

a ee ee ee ee

DEPARTMENT OF THE NAVY

INTRODUCTION

By petition filed October 14, 1982, Theo-

dore Yanopoulos (appellant) appealed to

the Board's Washington Regional Office

from the action of the Department of the

Navy, Naval Sea Systems Command (hereafter

the agency) removing him from his position

of Electronics Engineer for unacceptable

performance. The removal was effective

October 1, 1982. This decision is based

on the written submissions of the parties

as well as the testimony and documentary

evidence presented at a hearing held on

December 20, 1982.

JURISDICTION

Under 5 U.S.C. § 7701(a), the Merit Sys-

tems Protection Board has jurisdiction

over any action made appealable to it by

law, rule, or regulation. As an employee

in the competitive service who has been

removed for unacceptable performance under

the provisions of 5 U.S.C. § 4303, appel-

lant is entitled to appeal to the Board.

5 U.S.C. § 4303(e€), 5 C.F.R. § 432.206.

FINDINGS AND CONCLUSTONS

The agency's removal of appellant for

unacceptable performance was taken under 5

U.S.C. § 4303 and 5 C.F.R. Part 432.

"Unacceptable performance" is defined as

"performance of an employee which fails to

meet established performance standards in

one Or more critical elements of such

employee's position.” 5 U.S.C. § 4301(3).

"Critical element" is defined at 5 C.F.R.

§ 430.202(e) as:

Sgencede Aa tates Wat a eae aT SE

ee pee re

a bhi) Teka tire tae at

Race Wa NO

«sea COMponent of an employee's

job that is of sufficient

importance that performance below

the minimum standard established

by management requires remedial

action and denial of a within-

grade increase, and may be the

basis for removing or reducing the

grade level of that employee.

Such action may be taken without

regard to performance on other

components of the job.

The July 26, 1982, notice of proposed

removal charges appellant with unaccept-

able performance in critical elements 1

and 2 established for his position of

Electronic Engineer, GS-855-12. Critical

element 1 specifies that appellant is to

"Develop general design and testing re-

quirements to be included in SEA 61 acqui-

sition program documents." Critical ele-

ment 2 states that appellant is to "Moni-

tor contractor's implementation of the

general design and testing requirements."

The job requirements identified in these

Critical elements are also listed as

duties 1 and 2 in appellant's position

RR ee

description (Agency Exhibit 1). The posi-

tion description and the undisputed testi-

mony Of Mr. Toshio Oishi, appellant's

immediate supervisor, show that critical

elements 1 and 2 describe duties that are

major components of appellant's job.

To sustain its removal of appellant, the

agency must establish by substantial evi-

Gence ]/ that appellant failed to meet

the established performance standards for

critical elements 1 and 2. 5 U.S.C.

§§ 7701(c)(1) (A); 5 U.S.C. 4301(3). The

standards for appellant's position includes

a description of "Highly Satisfactory"

and "Marginal" performance. (Agency

File - Tab 11). Performance which

A/ Substantial evidence is defined as

"that degree of relevant evidence which a

reasonable mind, considering the record as

awhole, might accept as adequate to sup-

port a conclusion that the matter asserted

28 true.” 5 C.7.R. § 1261.56) (1).

fails to meet the marginal standard is

unacceptable. Appellant's work perform-

ance is alleged to have been below the

Marginal level for both critical elements.

For critical element 1, performance is at

a marginal level if "[r]equirements devel-

oped are generally technically complete,

comprehensive and timely but frequently

requires rewrite for clarity." The speci-

fic instances in which appellant's per-

formance is alleged to have fallen below

this level are listed in enclosure 1 to

the July 10, 1982 notice of proposed remo-

val. (Agency File - Tab 8). The detailed

testimony of Mr. Oishi and the documenta-

tion on each assignment (Agency File - Tab

7) show that appellant, as charged, failed

to prepare the required comments or check-

lists for any of the 12 listed assign-

ments. Although appellant is critical of

the supervision and assistance provided by

err eee

PET RT PT Ce en, ae nate:

Sah aS th Meith tiend aban each

Mr. Oishi and of his opportunity to im-

prove his performance, issues which will

be discussed subsequently, he presented no

evidence or testimony contradicting the

agency's documentation of his non-perfor-

mance of work required by critical element

1. The agency, therefore, has presented

substantial evidence that appellant failed

to meet the marginal standard for his

position and that his performance for

critical element 1 was unacceptable.

The marginal performance level for

Critical element 2 is defined as follows:

Requires frequent direction to moni-

tor implementation of the general

design and testing requirements.

However, when so directed generally

performs complete and timely reviews

of general design and testing data,

reports, and program status. Re-

ports problems at times without

determining and recommending appro-

priate corrective action.

As was the case with appellant's work

performance under critical element l, the

testimony of Mr. Oishi and the related

i ee eee ee

tye ee eS yee TT

documentation (Agency File - Tab 7)

concerning the assignments identified in

enclosure 2 to the notice of proposed

removal show that appellant in most in-

stances failed to provide the required

reviews and reports. On those occasions

that the necessary response was submitted

by appellant, it was not, Mr. Oishi testi-

fied, of acceptable quality. Appellant

testified generally that Mr. Oishi did

accept some of his work, but he presented

no evidence nor did he even claim that his

work on the specific assignments enumer-

ated by the agency was in fact completed

Or that it should have been accepted.

Appellant's demonstrated performance of

work required by critical element 2 is

shown to have been both incomplete and

untimely and therefore below the marginal

level. The agency, consequently, has

proved by substantial evidence that appel-

lant's performance for critical element 2

was unacceptable. 2/

Under 5 U.S.C. § 4302(b)(6) and Office of

Personnel Management regulations at

5 C.F.R. §§ 432.101(a) and 432.203(b), an

employee may be removed for unacceptable

performance only after having been pro-

vided a reasonable opportunity and time to

demonstrate acceptable performance. On

February 18, 1982, appellant was issued an

advance notice of unacceptable perform-

ance. (Agency File - Tab 13).

2/ Under 5 U.S.C. § 4303(c)(2)(A) the

instances of unacceptable performance

which serve as the basis for the removal

action must have occurred during the l-

year period ending on the date of the July

26, 1982, proposal notice. Several of the

assignments listed in enclosure 2 of that

notice were given to appellant prior to

this l-year period. These assignments

were of a continuing nature, however, and

were still incompleted or of unacceptable

qGuality on July 26, 1982. These instances

of unsatisfactory performance were thus

properly considered by the agency.

S ee ae > crt

That notice cited specific examples of

unacceptable performance in critical

elements 1 and 2, identified the actions

required to bring appellant's performance

to an acceptable level, and explained that

Mr. Oishi would meet regularly with appel-

lant and review his work. Mr. Oishi

testified that between February and July

1982 he met often with appellant to review

his progress and that in May 1982 a formal

progress review was conducted. (Agency

File ~ Tab 11). Mr. James W. Brush, Head,

Technical Support/Material Management

Division and appellant's second level

Supervisor, attested to Mr. Oishi's

meetings with appellant, and testified

that he too met with appellant to impress

upon him the seriousness of his perform-

ance deficiencies and to make recommenda-

tion for improving his work. Appellant,

on the other hand, maintains that he was

never given guidance and direction. On

ae asa

er Se

cross-examination, however, he explained

that Mr. Oishi did go over his projects

and did indicate corrections that should

be made. Moreover, in characterizing the

remarks made by Mr. Oishi during these

sessions as criticism rather than guid-

ance, appellant further acknowledges Mr.

Oishi's review of his work. Substantial

evidence that appellant was provided

reasonable time and opportunity to demon-

strate acceptable performance is therefore

present in the record.

Appellant further alleges that Mr. Oishi

was biased against him, that Mr. Oishi

shunned and ostracized him with the

ulterior motive of firing him, and that

Mr. Oishi failed to break him in and

"piled up" work. It is "one thing to make

a bare allegation of bias and something

else entirely to produce evidence in

Support thereof." Schaefer yv, United

States, 633 F.2d 945, 949 (Ct. Cl. 1980).

Here the appellant has presented no such

evidence. The testimony of Mr. Brush and

Mary Jane Hardy, a secretary in appel-

lant's office, indicates that Mr.

Oishi was a good supervisor who treated

all employees fairly. Neither Mr. Brush

or Ms. Hardy was aware of any behavior on

the part of Mr. Oishi that demonstrated a

bias against appellant. Appellant's claim

is in part based on his testimony that

while traveling with Mr. Oishi he had

inadvertently made a remark that may have

offended him. Mr. Oishi, however, denied

any knowledge of such an occurrence and in

fact explained that he had never traveled

with appellant. The written statement of

a co-worker of appellant's also suggests

that it was appellant who avoided Mr.

Oishi. Mr. Donald E. Cross, Electronic

Technician, explained that while he and

j other employees would meet with Mr. Oishi

| prior to and during a project to discuss

the procedures to be used, appellant would

complete a jobon his own and then submit

it to Mr. Oishi. In Mr. Cross' view,

appellant's "methods limited the time he

spent with Mr. Oishi.”

Appellant's claims that Mr. Oishi was

obligated to "break him in" is likewise

unsupported by any evidence in the record,

Appellant, who had been an Electronics

Engineer with the agency since 1967, came

under Mr. Oishi's supervision in April of

1981, The testimony of Mr. Oishi and of

appellant, upon cross examination, shows

that there was no change in appellant's

duties or position description on that

occasion or at any time during the period

he worked for Mr. Oishi. Appellant is

shown to have been fully aware of the

requirements of his position. (Agency

Exhibits 1 and 2). The evidence in the

record also disproves the contention of

appellant that Mr. Oishi "piled up” his

work. Mr. Oishi testified that because

appellant did not take the initiative on

projects assigned to him, he did have to

give appellant more specific tasks.

Appellant's overall workload, however, was

the same as that of other employees inthe

office. Appellant's work piled up only

because appellant failed to complete his

assignments. In this regard, I must also

note the testimony of Mr. Hardy and Mr.

Oishi that they frequently observed

appellant reading a newspaper and working

on a correspondence course during duty

hours. Although he disagreed with the

witnesses' testimony as to the frequency

of these activities, appellant did acknow-

ledge their occurrence. Such conduct

reflects adversely upon the credibility of

appellant and the bona fides of his claim

that Mr. Oishi and not he was responsible

for his uncompleted work and his unsatis-

factory performance. Appellant's allega-

tion of bias on the part of Mr. Oishi is,

I find, unsupported by any evidence in the

record.

Appellant also alleges that his removal

was the result of discrimination based on

his age. Discrimination because of age is

prohibited in Federal employment by sec-

tions 12 and 15 of the Age Discrimination

in Employment Act (ADEA) of 1967 (29

U.S.C. §§ 631, 633a) and constitutes a

prohibited personnel practice under

5 U.S.C. § 2302(b)(1)(B). Appellant has

the burden of establishing that his remo-

val was the result of age discrimination.

5 U.S.C. § 7701(c)(2)(B); 5 C.F.R.

§ 1201.56(b)(Z).

Appellant, age 61 at the time of his remo-

val, is within the age group protected by

the ADEA. He has not, however, presented

any evidence that his age was a factor in

the agency's removal action. His claim,

he testified, is based solely on comments

concerning his eligibility for retirement

that were made during his personal reply

to RADM D. M. Jackson, Deputy Commander,

Combat Systems Directorate. RADM Jackson

made the final agency decision on appel-

lant's removal. (Agency File - Tab 3).

The written summary of appellant's per-

sonal reply does show that RADM Jackson,

at the conclusion of the meeting, did

state to appellant, "I see that you are

eligible to retire if you wanted to." In

the context of the comments being ex-

changed between appellant and RADM

Jackson, that statement is not shown to be

anything other than an informal inquiry.

Even if viewed as an indirect suggestion

ee —!

to appellant that he consider retirement,

RADM Jackson's remark would not be inap-

propriate. The reference to appellant's

retirement eligibility is in any event

insufficient to establish a connection

between appellant's age and the agency's

decision to remove him for unsatisfactory

performance. McDonnell Douglas Corpo-

ration vy. Green, 411 U.S. 792 (1973).

Moreover, even if appellant has estab-

lished a prima facie case of age discrimi-

nation, he did not overcome the agency's

articulated, nondiscriminatory reason for

its action. Stewart v, U.S. Postal Ser-

vice, MSPB Order No. DA07528010154 (Noven-

ber 28, 1981); Siegelman v. Department of

Housing and Urban Development, MSPB Order

No. DC0432810293 (January 10, 1983). I

find, consequently, that appellant has not

met his burden of showing that age discri-

Mination was the basis for his removal.

Finally, through the testimony of Mr.

Oishi and Mr. Brush, the agency his

explained its reasons for removing

appellant rather than demoting or

reassigning him. The position held by

appellant, Electronics Engineer, GS-855-

12, was an important one and his

unacceptable performance seriously

affected the ability of his office to

provide adequate support to the agency's

project engineers. In this regard Mr.

Oishi stated that he had received

complaints about appellant's work from

those engineers. He and Mr. Brush also

explained that because of the work habits

demonstrated by appellant and his non-

performance of numerous projects, he could

not be reassigned or even demoted to some

other position that also required engi-

neering expertise. They also testified

that because appellant had been given

assistance and a lengthy period of time in

which to improve and had already been

given training, removal was the only solu-

tion to the problem created by his unac-

ceptable performance. The agency, I find,

has therefore established by substantial

evidence its decision to remove appellant

for unacceptable performance under the

procedures of 5 U.S.C. § 4303. 5 U.S.C.

§ 7701(c) (1) (A).

DECISION

The removal action is SUSTAINED.

NOTICE

| This decision is an initial decision. It

will become a final decision of the Merit

Systems Protection Board on March 24, 1983

unless a petition for review is filed with

the Board within thirty-five (35) calendar

Gays after the date of this decision.

Any party to this appeal, the Director of

the Office of Personnel Management, and

the Special Counsel may file a petition

for review of this decision with the Merit

Systems Protection Board. The Director

may request review only if he/she is of

the opinion that the decision is erroneous

and will have a substantial impact on any

civil service law, rule, or regulation

under the jurisdiction of the Office of

Personnel Management. 5 U.S.C.

§ 7701l(e)(2). The petition must identify

specifically the exception taken to this

decision, cite the basis for the

exception, and refer to applicable law,

rule or regulations.

The petition for review must be filed with

the Office of the Secretary, Merit Systems

Protection Board, 1120 Vermont Ave., N.W.,

Washington, D.C. 20419, no later than

thirty-five (35) calendar days after the

date of this decision. If a petition for

review is filed, an informational copy of

it should be forwarded to this office.

The Board may grant a petition for review

when a party submits written argument and

supporting documentation which tends to

show that:

(1) New and material evidence is

available that, despite due

diligence, was not available when the

record was closed; or

(2) The decision of the presiding

official is based on an erroneous

interpretation of statute or

regulation.

The appellant has the right to petition

the Equal Employment Opportunity Commis-

sion (EEOC) to consider the Board's final

decision on the issue of discrimination,

The appellant [may file a civil action in]

court without either petitioning the EEOC

or the Board or after either body has

rendered a final administrative decision.

Either a petition or a civil action may be

filed, but not both, no later than 30 days

after the Board's decision has become

final. Appellants who choose to file an

action in a district court also have the

right to request the court to appoint a

lawyer to represent them, and to request

that prepayment of fees, costs, or

security be waived.

Except for actions filed under the anti-

discrimination laws, a petition for

judicial review of a final Board decision

must be filed in the U.S. Court of Appeals

for the Federal Circuit no later than 30

days after receipt of notice of the

Board's final decision.

For the Board:

William C. Jenkins

Presiding Official

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

THEODORE YANOPOULOS CASE NO:

DCO 4328310008REM

DEPARTMENT OF THE

NAVY

DATE: Feb. l,

1985

ee eee ee ee eee

SUPPLEMENTAL INITIAL DECISION

By order dated November 2, 1984, the Board

remanded this case for a determination

whether the agency has established Office

of Personnel Management (OPM) approval of

the performance appraisal system under

which it took the action against appel-

lant. As neither party demonstrated or

alleged that this issue was previously

raised before the close of the record, a

second opportunity to address it was

provided,

Correspondence from OPM submitted by the

agency shows that OPM approved the

agency's performance appraisal plan in

October 1980. That plan was subsequently

implemented by the agency in October 1981,

and was therefore in effect when the

instant action against appellant was

initiated in 1982. Appellant has not

offered any rebuttal evidence and in a

January 29, 1985, submission has stated

that he is satisfied that an OPM approved

plan was in place. The agency, I

conclude, has therefore established by

substantial evidence that OPM had approved

its appraisal plan before action under 5

U.S.C. Chapter 43 was taken against

appellant. Hazzard v, Department of the

Navy, MSPB Docket No. DC04328310295

(December 4, 1984); Griffin v. Department

of the Army, MSPB Docket No. CH07528210163

(October 22, 1984).

NOTICE

This is a supplemental initial decision.

This decision and the appellate record are

hereby forwarded to the Clerk of the Board

to be reunited with the pending petition

for review. The parties may file excep-

tions to the supplemental initial decision

with the Office of the Clerk, Merit

Systems Protection Board, 1120 Vermont

Avenue, N.W., Washington, D.C. 20419, for

consideration by the Board in connection

with the pending petitions for review in

this appeal. Such a submission must be

filed within thirty (30) days of the

issuance date of the supplemental initial

decision, and each party making such a

submission must include a statement

certifying service of a copy of the

Submission on the other party. Upon

receipt of the supplemental appellate

record from the Regional Office and any

exceptions to the supplemental initial

decision timely filed by the parties, the

Boardwill issue a final decisioninthis

appeal.

For the Board:

William C. Jenkins

Presiding Official

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

THEODORE YANOPOULOS, No. 85-2592

Petitioner,

)

vV. )

)

DEPARTMENT OF THE NAVY, )

)

Respondent.

JUDGMENT

ON APPEAL from the MERIT SYSTEMS

PROTECTION BOARD, DC04328310008. This

CAUSE having been heard and considered, it

is ORDERED and ADJUDGED: AFFIRMED.

DATED: January 28, 1986

ENTERED BY ORDER OF THE COURT

Francis X. Gindhard, CLERK

Waa an Rt ly (ornare dare

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

THEODORE YANOPOULOS, Appeal

No. 85-2592

Petitioner,

)

v. )

)

DEPARTMENT OF THE NAVY, )

)

Respondent. )

ORDER

A petition for rehearing and a

suggestion for rehearing in banc having

been filed in this case,

UPON CONSIDERATION THEREOF, it is

Ordered by the court that the petition for

rehearing be, and the same is hereby,

denied.

The suggestion for rehearing in banc

is declined.

FOR THE COURT

3-19-86

Date Francis X. Gindhart, Clerk

Date: March 19, 1986

athe a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

THEODORE YANOPOULOS,

Date: Oct. 12,

Appellant, 1982

DEPARTMENT OF THE NAVY,

NAVAL SEA SYSTEMS

COMMAND

eee ee eee ee ee

Agency.

INITIAL ORDER

The above captioned case has been filed

with this office and has been assigned to

a presiding official, Stephanie Marks.

All material submitted to the Board in

this appeal must be addressed to this

presiding official.

In accordance with the Board's rules of

procedure, it is hereby ordered:

l. Filing and Service. All further

submissions to the Board, including

motions, responses to an opposing party's

submission, requests for discovery,

designations of representative, and all