# Appendix — Yanopoulos v. Department of the Navy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2055%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 479 U.S. 824 ## Text ir Supreme Cour, V.: | $ : ‘* FIDED 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 uw 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. A. 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 f ; a ea * d & . q - . @ . _ = 7 —— = os ee) oO 43-8 ——— << <= = gee Se : ¥ _ om S ° ¢ ; @ - ad ‘ = > » > iy > . ' > - i ‘ _« 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. B. 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, 10 and in making opening and closing statements. Conclusion For the reasons stated above, the decision of the MSPB is affirmed. 11 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 12 ——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). 13 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- 14 ——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. 15 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. 16 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: 17 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 18 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). 19 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 21 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. 23 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 24 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 25 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 26 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 27 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 28 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). 29 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 30 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. 31 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 32 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 33 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 34 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] 35 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 36 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE THEODORE YANOPOULOS CASE NO: DCO 4328310008REM Ve 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 37 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. 38 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 39 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 41 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 42 athe a UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE THEODORE YANOPOULOS, Date: Oct. 12, Appellant, 1982 Ve 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 43 motions, responses to an opposing party's submission, requests for discovery, designations of representative, and all other documents, must be filed with an Original and one copy on 8 1/2 x 1l inch paper. */ A copy of any submission to the Board must be served simultaneously on the opposing party(ies) noted on the attached service list. Service may be made by mailing or personally delivering the submission to the opposing party(ies). All submissions to the Board must include a certificate of service specifying the name and address of the party served, the date of service, the method of service (mail or personal delivery), and the Signature of the person certifying that service was made. Anexample of a s/ Office hours are from 8:15 a.m. to 4:45 p.m. 44 certificate of service is included with this order. No submission will be considered properly filed if it is not accompanied by a certificate of service. 5 C.F.R. 1201.26 as amended, 46 Fed. Reg. 62045 (1981). 2. Agency Response. The agency must file in accordance with paragraph 1 the material listed in ATTACHMENT A and any additional material required by 5 C.F.R. 1201.25 within 20 calendar days of the date of this order. The material must be organized in the manner described in ATTACHMENT B. 3° Representative. Parties shall file with the Board a Designation of heecesent- ative form (enclosed) if they wish to be represented and have not previously desig- nated a representative. Parties are required to notify the Board and each other of any change in representative during any stage of the proceedings. If 45 . | | | | ; there is a change in representative, the parties shall strike the old representa- tive fror the service list and beginto ) make service on the new ‘representative. 4. Responses. Unless otherwise ordered by the presiding official, any party who wishes to respond to a submission filed with the Board by an opposing party must file the response no later than 10 days after receiving the submission from the Opposing party. 5. Discovery. The Board encourages the parties to cooperate with each other and to conduct voluntary discovery, if discovery is needed. An explanation of discovery and procedures for its use are contained in ATTACHMENT C. The Board's regulations concerning discovery are contained at 5 C.F.R. 1201.71-1201.75. Unless otherwise ordered by the presiding official, discovery must be fully com- 46 pleted no later than 50 days from the date of this order. 6. Hearing. If a hearing is requested, it will be conducted approximately two to six weeks after the agency files its response to the petition for appeal as ordered in paragraph 2. At the time the hearing is scheduled the parties will receive information on how to arrange for the presence of witnesses at the hearing. If a hearing has not already been re- quested the parties are provided 15 days from the date of this order to filea request. If no request for a hearing is received within the time limit, the hearing will be considered waived and the presidino official will adjudicate the case after providing the parties with the Opportunity to file written submissions. 7. Ex Parte Communications. Ex parte communications are oral or written commu- nications between decision-making person- 47 nel of the Board and an interested party to an appeal without providing the other parties a chance to participate. ,Those ex parte communications which involve the \ merits of a case or violate other rules requiring submissions to be in writing are prohibited. Sanctions may be imposed on any party engaging in prohibited ex parte communications. See 5 C.F.R. 1201.103. 8. Adjudication. It is the policy of the Merit Systems Protection Board to issue an initial decision on an appeal within 120 calendar days after the petition for appeal is filed. The Board expects the parties to cooperate in the expeditious processing of this case. Failure to prosecute or defend the appeal may result in judgment for the opposing party. 9. Sanctions. Since the purpose of this order is to assist in the prompt prepara- 48 tion and adjudication of the case, all parties shall comply with each section of this order and in particular with the time limits set herein. If either party fails to comply with this order, sanctions may be imposed. Sanctions include, but are not limited to, striking untimely submissions from the record, The Board's appellate regulations are found in Title 5, Code of Federal Regulations, Part 1201. These are avail- able for review inthe offices of the Board, agency personnel or employee relations offices, and in some large public libraries. The regulations should be consulted for detailed information on the practices and procedures followed by 49 the Board in processing an appeal. MARTHA J. LANPHEAR Acting Regional Director Attachments for Appellant Designation of Representative Attachments A, B, and C Privacy Act Notice Service List Attachments for Agency Designation of Representative Attachments A, B, and C Petition for Appeal Service List 50 ATTACHMENT A SCHEDULE 7: PRODUCTION OF DOCUMENTS IN AN APPEAL FROM AN ACTION BASED ON UNACCEPTABLE PERFORMANCE General cnformation \ All evidence concerning an appeal must be disclosed to the parties. Therefore, no classified document can be received in evidence unless accompanied by a statement that it is declassified and that full disclosure is permitted. Statements of witnesses should be in affidavit form, and must be released without a pledge of confidence. Documents must be certified and true and correct copies. l. Any grievance or allegation of dis- crimination raised with the agency by the appellant or in the appellant's behalf concerning the action under 51 appeal ; The decision, if any, issued by the agency in such a grievance or alle- gation of discrimination; Evidence of the date and nature of the appellant's last appointment (if not shown on the SF-50); (a) If the appellant is inthe com- petitive service, evidence of the date on which the appellant completea a probationary or trial period; (b) If the appellant is in the excepted service, evidence which established the appellant's entitlement to veterans prefer- ence and evidence that the appellant has or has not con- pleted one year of current con- tinuous service immediately prior to the effective date of 52 10. the removal or reduction in grade; (c) If the appellant is a super- visor Or manager, evidence that the appellant has or has not completed a probationary period under 5 U.S.C. 3321(a) (2); The notice of proposed action; The appellant's written reply, if any; Summary of the appellant's personal reply, if any; The notice of the decision; The SF-50 or other notification of personnel action documenting the action under appeal; Evidence of the dates the appellant received the notices of proposed action and decision; Evidence of the performance stand- ards, if any, applicable to the 53 ll. + appellant's position; Evidence supporting the action taken including the affidavits of any witnesses; Response to material issues raised by the appellant. 54 ATTACHMENT B Those documents that are part of your agency's record of the proceeding on this case should be organized for each set in the following manner. le The documents are placed in the file in order of date with the oldest document at the top and the most recent document at the bottom. 2. A table of contents is prepared that identifies the case and lists all the enclosed documents (the Oldest document is identified and tabbed as number 1, the next document in date sequence is identified and tabbed as number 2, and so on with the highest number indicating the most recent document). Je The table of contents shouid have the following headings: Location Date Document Source —ra 55 (The Location indicates the tab number under which the document is filed; the date is the date of receipt or issuance of the document; document description fully identi- fies the document; source indicates who submitted the document). 4. The completed table of contents is placed on top of the tabbed documents. Your comments on the appellant's petition ana any submission in rebuttal to the appeal shall be furnished with but not placed in the file that has been tabbed and indexed. 56 ATTACHMENT C DISCOVERY PROCEDURES Both the appellant and the agency should start preparing the case immediately. Such preparation should include gathering Gocumentary evidence, identifying any witnesses, and deciding which arguments you wiil present to support your side of the case. The Board intends that all proceedings on appeals be conducted as expeditiously as possible with due regard to the rights of the parties. Parties who prepare before the hearing and know what they want to accomplish at a hearing or in their written presentations assist the presiding official in deciding an appeal on acomplete recordina timely manner. Each party probably already possesses some evidence pertinent to the case. A copy of any evidence the appellant may have attached to the appeal is being served on the agency with the order acknowledging 57 receipt of the appeal. A copy of any response the agency submits to the appeal will be served on the appellant or the designated representative. If you are aware of other relevant evidence under the control of the opposing party, which is not included in the appeal or the agency response, you may obtain this evidence by using the discovery procedures. Discovery is the means by which parties may learn of the facts, documents or other evidence necessary to their case which is in the exclusive knowledge or control of the opposing party and which has not already been provided (such as the documents submitted with the agency response to the appeal). The party seeking discovery bears the costs involved. The following procedures are commonly used to secure documents or other information under the control of the 58 opposing party. These procedures do not cover all of the provisions of the Board's regulations; therefore, you are urged to review the regulations for detailed and complete information. See "Evidence," "Discovery” and "Subpenas" in 5 C.F.R. 1201.61-1201.85. l. Production of documents. A party presents awritten request tothe designated representative of the other party asking it to produce specifically identified documents or information. Two copies of the request must be sent tothe presiding official. A statement of the general relevance of the information sought to the case should be included. This often minimizes objections. It also alerts the presiding official to why the information may be necessary to the party seeking it when the presiding official rules on any objections. 59 Within five working days after receipt of the request, the other party complies with the request, resolves any difficulties, Or, if cooperation fails, files two copies of a written objection to the request with the presiding official, sending a copy to the party who requested the discovery. The presiding official rules on the objection and, if appropriate, orders the party to produce the information. If a party requesting the information does not receive it or anobjection from the other party within a reasonable period of time, the requesting party should ask the presiding official to order the other party to produce the information. If the presiding official is not informed of any objections or does not receive a request for an order to produce by the deadline date for discovery to end, the presiding official will assume that the parties have 60 resolved any questions on the production of information. 2. Depositions and interrogatories. A party who wishes to take depositions or have responses given to interrogatories should follow the same procedure described above for the production of documents with one exception. In the face of an objection the party seeking discovery, within five days of the receipt of the objection, must file a motion with the presiding official stating the basis for the request and the order desired. Only Board members ene administrative law judges of the Board have the authority to order the taking of depositions and responses to written interrogatories. The presiding official will refer the motion to a Board member or an administrative law judge who will act on the motion directly Or authorize the presiding official to do SO. 61 In ordering discovery, the Board will carefully balance the need to avoid unproductive delay in adjudication and the need to obtain information essential to having a complete record. 5 C.F.R. 1201.71. An order for discovery will specify, where appropriate, the conditions under which discovery will be conducted. MERIT SYSTEMS PROTECTION BOARD PRIVACY ACT STATEMENT During the course of processing the appeal, it is necessary to collect personal information that is relevant and necessary to reaching a decision in your case. The Merit Systems Protection Board collects this information in order to process appeals under one or more of the following authorities: Title 5 U.S.C., sections 1302, 3301, 3302, 5115, 5338, 5346, 7151, 7154, 7301, 7501, 7512, 7701 and 8347, as well as Executive Orders 9830, 11222, 11478, 11491, and 11787. Since the appeal is a voluntary action, appellant is not required to provide any personal information to the Merit Systems Protection Board in connection with the appeal. However, failure to provide all information essential to reaching a decision in the case could result in the cancellation of the appeal. 63 The appeal decisions of the Merit Systems Protection Board are final administrative decisions and as such are available to the public under the provisions of the Freedom of Information Act. Some information about the appeal is used in depersonalized form as a data base for program statis- tics. If there is a need to disclose information from the appeal file for reasons other than these, or those cited in the Privacy Act (Title 5, United States Code, 552a(b)), appellant's prior written consent will be solicited. 64 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE THEODORE YANOPOULOS, Date: November l, 1982 Ve DEPARTMENT OF THE ) ) ) ) ) NAVY ) ) ORDER FOR HEARING 1. Date and Location. The hearing in this appeal will be held at the following time and location: DATE: December 14, 1982 TIME: 9:00 a.m. LOCATION: Skyline Place #2 Suite 1109 5203 Leesburg Pike Falls Church, Virginia 2. Witnesses. Each party must file with the Presiding Official a list of the names of the witnesses it intends to call at the hearing. The list must contain a brief 65 description of the anticipated testimony of each witness. The Board expects the parties to arrange for the presence of witnesses at the hearing either by them- selves or through cooperation with the Opposing party. Only if cooperation fails should the parties request assistance from the Presiding Official. Witnesses whose testimony is irrelevant or repetitious will not be permittedto testify at the hearing. More specific guidelines for arranging for the appearance of witnesses may be found in Attachment D. 3. Hearing Exhibits. To avoid delay at the hearing, exhibits which are expected to be introduced into evidence should be served on the opposing party. 4. Time Limits. In preparing for the hearing, all parti:+s must meet the deadlines prescribed below: 66 Filing and service notice of, or request for, witnesses; filing and serving copies of November 26, 1982 any other requests or motions of any type, including discovery. Filing and serving objections to the above. December 3, 1982 Serving copies of 5 workdays prior hearing exhibits on to the hearing opposing party. Absent unusual circumstances, no action will be taken on any request or motion filed after the above-cited deadlines. Any party filing an objection to a request based solely on untimely service must show how the untimely service prevented compliance with the request or otherwise prejudiced their rights. 5. Postponements. It is the policy of the Board to issue an Initial Decision within120 days of the date the appeal was filed. Requests for postponement of a scheduled hearing must be supported by affidavit and may only be granted upon a 67 showing of good cause. 6. Failure to Appear. If a party fails to appear for the hearing, without good cause, the hearing will proceed or the case will be decided on the basis of the existing record. Depending on the circumstances, failure to appear may also result in sanctions. 7. Service. All material filed with the Presiding Official must be served on the Opposing party as described in paragraph 1 of the Initial Order in this appeal. 8. Settlement. At least 10 days prior to the hearing date, the agency represen- tative is directed to contact the appel- lant or his or her representative to discuss the possibility of settling this appeal. Both parties should be prepared to advise the Presiding Official regarding the outcome of these negotiations on the 68 hearing date. STEPHANIE MARKS PRESIDING OFFICIAL Enclosure Attachment D cc Theodore Yanopoulos Pam Smith 69 ATTACHMENT D There are three methods which may be used to secure the appearance of witnesses at a hearing. Whichever method or combination of methods is used, the parties must notify the presiding official in writing, with a copy to the opposing party, of the names of the witnesses to be called witha brief summary of their anticipated testi- mony. This information must be submitted by the deadline date given in the notice of hearina. 1. The parties arrange for the witnesses to appear voluntarily. The parties need only send the presiding offi- cial copies of the witness list as stated in the hearing notice. Under this proce- dure the presiding officiai generally will not issue an order regarding the appear- ance of witnesses. 70 2. The parties cooperate with each other on the appearance of witnesses. The presiding official intervenes only if cooperations fails. Under this method, the appellant presents a written request to the designated repre- sentative of the agency asking the agency to arrange for the appearance of its employees as witnesses. It is advisable for the request to contain a brief expla- nation of why the testimony of a witness would be relevant to the case, in the event that the presiding official must rule on an objection to the request. The appellant must send two (2) copies of the request to the presiding official. The agency complies with the request, resolves any difficulties concerning the request with the appellant, or if cooperation fails, files a written objection to the request with the presiding official, sending a copy to the appellant. 71 The presiding official rules on the ob- jections and, if appropriate, orders the agency to produce the witness in question. If the presiding official is not informed of objections by either party, the presiding official will assume that the parties have resolved any questions on the appearance of witnesses. Under this circumstance the presiding official will generally not issue an order concerning witnesses. Both parties must comply with the dead- lines for requesting witnesses or filing objections stated on the notice of hearing. Federal agencies are required to arrange for the appearance of employees as witnesses at Board hearings upon request of the presiding official. Employees are in official duty when testifying. 72 3. The parties may move that a subpena be issued to compel the appear- ance of a person to testify at a hearing. A motion for subpena must be in writing, identify the person, papers, and documents desired, and be supported by a showing of general relevance and reasonable scope of the evidence sought. Two copies of the motion must be filed with the presiding official. One copy must be served on the Opposing party. Only the Board members and an administrative law judge of the Board have the authority to issue Subpenas. The presiding official will refer the motion to a Board member or an administrative law judge, who will act on the motion directly or authorize the presiding official to do so. Both parties must comply with the deadlines for filing such motions stated in the notice of hearing. va If a subpena is issued, the party who requested it is responsible for serving it on the individual subpenaed in accordance with 5 C.F.R. 1201.85 and 1201.86. The parties must also bear the costs of the witness' appearance under 5 C.F.R. 1201.37(b). Finally, no matter under what procedure the appearance of a witness is obtained, the parties should make an effort to reduce the amount of time awitness has to wait before he or she is calledto testify. For example, a witness who is not scheduled to testify until afternoon should not be told to report at 9:00 a.m. 74 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2055%3A2. Public record. Not legal advice.