Petition for Writ of Certiorari — Diaz v. Department of the Air Force
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U.S.
FIE SD
J
951145 JAN 1 6 1%
No. OFFICE OF THE CLERK
Supreme Court of the United States
.
October Term, 1995
ISMAEL R. DIAZ,
Petitioner,
vs.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Petition for Writ of Certiorari to the United States Court
of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI
SHELBY W. HOLLIN
Attorney at Law
Counsel of Record
Attorney for Petitioner
7710 Stagecoach
San Antonio, Texas 78227
(210) 674-2584
(800) 3 APPEAL * (800) 5 APPEAL « (800) BRIEF 21
BR erices, inc.
i
QUESTIONS PRESENTED
I. Whether the United States Court of Appeals for the
Federal Circuit abused its discretion and denied due process by
relying on the Supreme Court decision, Brock v. Pierce County,
476 U.S. 253, 259-260 (1986) in determining that violation of
5 U.S.C. § 4303(c) was simply a procedural violation to be
considered as harmful error under 5 U.S.C. § 7701(c)(2)(A)?
II. Whether the United States Court of Appeals for the
Federal Circuit abused its discretion and denied due process by
failure to follow prior Supreme Court decisions in McCormack
v. United States, 204 Ct.C1.371 (Ct. C1. 1974); Yuniv. MSPB,
784 F.2d 381 (Fed. Cir. 1986), [86 FMSR 7017]; Morton v.
Ruiz, 415 U.S. 199, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974);
Service v. Dulles, 354 U.S.363,77S.Ct. 1152, 1 L. Ed. 2d 1403
(1957); United States v. Monsanto, 491 U.S. 600, 607, 109 S.
Ct. 2657, 2662, 105 L. Ed. 2d 512 (1989) and in its own
decisions in Baracco v. Department of Transportation, [83
FMSR 7021] (1983), aff’d, 735 F.2d 488 (Fed. Cir.) [84 FMSR
7028], cert. denied, 469 U.S. 1018 (1984); Handy v. U.S.
Postal Service, 754 F.2d 335-38 (Fed. Cir. 1985) [85 FMSR
7003); Lovshin v. Dept. of Navy, 767 F.2d 826 (Fed. Cir. 1985)
[85 FMSR 7038], cert. denied, 475 U.S. 111 (1986) and Shiflett
v. U.S. Postal Service, Civ. No. 87-3391 (Fed. Cir. Feb. 8,
1988) [88 FMSR 7008].
III. Whether the United States Court of Appeals for the
Federal Circuit and the Merit Systems Protection Board has
effectively negated the congressional mandate of affirmative
defenses contained in 5 U.S.C. § 7701(c)(2)(B) and 5 U.S.C.
§ 7701(c)(2)(C)?
ii
TABLE OF CONTENTS
Page
Questions Freseateg |. soo. .skccdincncebacuseaeueas i
OUI CE COMIOMES. ook cen csccactedesseeealeee ii
'
TODIe OF CHAUIOME 20. 00s sccccuavias ue ceeenaeneenl iii
Cpimions BOROW oo occ cacestnnesdueceen eee l
Stassmont of FOTO no a nvccccdpnaebencen eens l
Statutory Provisions Involved ..............eeee00: 2
Statement OF (00 CASS ace 6.40008 cscs 40 be See 2
Reasons for Granting the Writ ...... ccccesecscccces 4
I. Whether the United States Court of Appeals for
the Federal Circuit abused its discretion and
denied due process by relying on the Supreme
| Court decision, Brock v. Pierce County, 476 U.S.
253, 259-260 (1986) in determining that
violation of 5 U.S.C. § 4303(c) was simply a
procedural violation to be considered as harmful
error under 5 U.S.C. § 7701(c)(2)(A). ........ 4
II. Whether the United States Court of Appeals for
the Federal Circuit abused its discretion and
denied due process by failure to follow prior
Supreme Court decisions in McCormack y.
United States, 204 Ct. Cl. 371 (Ct. Cl. 1974);
Yuni v. MSPB, 784 F.2d 381 (Fed. Cir. 1986), [86
FMSR 7017]; Morton v. Ruiz, 415 U.S. 199, 94
iii
Contents
Page
S. Ct. 1055, 39 L. Ed. 2d 270 (1974); Service v.
Dulles, 354 U.S. 363,77 S.Ct. 1152, 1 L. Ed. 2d
1403 (1957); Cleveland Board of Education v.
Loudermill, 470 U.S. 546 (1985); United States
v. Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657,
2662, 105 L. Ed. 2d 512 (1989) and in its own
decisions in Baracco v. Department of
Transportation, [83 FMSR 7021] (1983), aff'd,
735 F.2d 488 (Fed. Cir.) [84 FMSR 7028], cert.
denied, 469 U.S. 1018 (1984); Handy v. U.S.
Postal Service, 754 F.2d 335-38 (Fed. Cir. 1985)
[85 FMSR 7003); Lovshin v. Dept. of Navy, 767
F.2d 826 (Fed. Cir .1985) [85 FMSR 7038], cert.
denied, 475 U.S. 1111 (1986) and Shiflett v. U.S.
Postal Service, Civ. No. 87-3391 (Fed. Cir. Feb.
8, 1988) (88 FMSR 7008}. .................. y
III. Whether the United States Court of Appeals for
the Federal Circuit and the Merit Systems
Protection Board has effectively negated the
congressional mandate of affirmative defenses
contained in 5 U.S.C. § 7701(c)(2)(B) and 5
Pe TECE, csccechbesenveceeccs 12
SEEN 0 N66 64 ba oh b Ud Wb ccniod dened es occiccces 21
TABLE OF CITATIONS
Cases Cited:
Anti-Fascist Committee v. McGrath, 341 U.S. 123
ee ee Koes eoGie 12
iv
Contents
Page
Baracco v. Department of Transportation, [83 FMSR
7021] (1983), aff’d, 735 F.2d 488 (Fed. Cir.) [84
FMSR 7028], cert. denied, 469 U.S. 1018 (1954) .. i,9, 14
Brock v. Pierce County, 476 U.S. 253 (1986) ......... i, 4, 6,8
Cleveland Board of Education v. Loudermill, 470 U.S.
rt. ee vob c'n's de Vana debate veueeere. 4
Connecticut National Bank v. Germain, 112 S. Ct. 1146
CR edad dctedancedccedeesticedeesiacsein: 8
Faust v. Smithsonian Institute, 29 M.S.P.R. 496 (1985)
» Sob cuedeeaN bbs ae b¥b eee bhbs ure Wenn d beeriees 15
Hamilton v. U.S. Postal Service, 93 FMSR 5319 ...... 17
Handy v. U.S. Postal Service, 754 F.2d 335 (Fed. Cir.
ESBS) EGS Pe PORE sider tdsawtcadtencs i, 6,9, 11,21
Lovshin v. Dept. of Navy, 767 F.2d 826 (Fed. Cir. 1985)
[85 FMSR 7038], cert. denied, 475 U.S. 111 (1986)
oa ceesbadvepsbbbo553500 NEE eek ees tel i, 6,9, 18, 19
McCormack vy. United States, 204 Ct. Cl. 371 (Ct. Cl.
SED. Kd dd whic ddan has cutee cassis i,9
Morton v. Ruiz, 415 U.S. 199, 94S. Ct. 1055, 39 L. Ed.
DE RPEO TEE ca diiccesucknsucssaneeisciurs te i,9
Nafus v. Department of the Army, 93 FMSR 5163 ..... 17
Vv
Contents
Page
Page v. Bolger, 645 F.2d 227 (C.A. SIGGT) .« cineviexs 12
Plaut v. Spendthrift Farm Inc.,1 F.3d 1487 (6th Cir.
BODE) ca ccccvnctecsspicsascceserecowssceoeess 8
Rubin v. United States, 449 U.S. 422, 101 S. Ct. 698, 66
L. Ed. 24633 (1981) ...... ccc eecececccenceceees 8
Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed.
2d 1403 (1957) .... cece cecccecccccnvereccceces i, 9,10
Shiflett v. U.S. Postal Service, Civ. No. 87-3391 (Fed.
Cir. Feb. 8, 1988) [88 FMSR 7008] ........--- i, 9, 10,21
Stephen v. Department of the Air Force, 91FMSR5192 .. 15
Sullivan v. Dept. of the Navy, 90 FMSR 5268 .......- 21
United States v. Caceres, 99 S. Ct. 1465 (1979) .....-- 12
United States v. Monsanto, 491 U.S. 600, 109 S. Ct.
2657, 105 L. Ed. 24512 (1989) .....---- eee eeees i, 8,9
Wells v. Harris, 1 MSPB 199, 79 FMSR 7005 .......-- 1§
Yuni v. MSPB, 784 F.2d 381 (Fed. Cir. 1986) [86 FMSR
\ orem rrr rrr rrrr iyo ctr tr sD. i,9
vi |
Contents
Page
Statutes Cited:
Title 5 U.S.C. Chapter 23:
DSSOE ccncecsscdocnssincsdncéseetssbendecnees 18
§ 2301(D)( 12367)... cece cee w ecw eeees 19
DADSORIUEED ccccdcccccvatwcuvscessdeunentaceel 18
DABEEED 0 ccccvcesscccccesétedunatseuanpan ees 12
S SOU ED eo ces cccdeivcsseeebuene 6, 13, 18, 19, 20, 22
Title 5 U.S.C. Chapter 43:
BGSSD cccctdccceshéudebbtescccdsarsuusasusel 18
DOD 6 Soc cccccccedsukegececcasntscas en 18
BQSUNGUNEED cbvcccdocceeddcdccccuacusbesanenl 7
BQPEOEED coccccceccntesvedacedgevacddcsaanant 4
BS GSSU ED eS cc cccvcccectidcteesessseblaanens 7,8
DEDSEEID cc basccccoke th ocanteobbdnnteaalitel l
vii
Contents
Page
Title 5 U.S.C. Chapter 77:
BTTOUA) .....cccccccccccccccccsesscossseeres l
STTON(CH MA) --cececeecececeresesreeseseee® 12
SB TIOUCK2) ...--cceccccccccscccecesssceeeees 12
§7701(ch2MA) .------ ees ewenaves i, 1, 4,6, 11,21, 22
§7701(ch2MB) ..-----eeererereee i, 4, 12, 18, 20,21, 22
WEL) (03) 04) © Be i, 4,6, 12, 18,21, 22
STTOUEM1) ..---cececccececcccccesescrsreees l
STIOMOM) ...--cececrccececececsecsceseeees l
2B U.S.C. § 1254(1) ..--ec ee eeeereeerrseeereetee }
28 U.S.C. § 1295(al(9) .-----eeeeeeerererrerttte l
Other Authorities Cited:
Title 5 Code of Federal Regulations, Part 432:
BABZ.1O1 ....cccccccccccccccccccsccccsecere: 18
432.106 .....cccccccccccescccccccscccessere: 10
§ 432.106(a)(4)(i) .------ see eee ee errr rset 10
§ 432. 106(D) ....- see cecrccccccscsceseserere® 10
viii
Contents
Title 5 Code of Federal Regulations, Part 1201:
BE IPT EPECTT COC CLT TTT
DEMUEEES cccbbvncccvccccsccescccbsshahsbeaens
Air Force Regulations, Chapter 5, 40-452 ..10, 11, 13, 14,
P.L. 95-454 Civil Service Reform Act of 1978; 1978
U.S. Code Cong. & Admin. News at2765 .........
APPENDIX
Appendix A — Order Denying Petition for Rehearing
and Suggestion for Rehearing in Banc Dated October
Lig ROE 0< sth cnsssasdasdksbenabsasenkenuceas
Appendix B — Initial Order of the United States Court
of Appeals for the Federal Circuit Affirming the
MSPB Action Dated August 21,1995 ............
Appendix C — Final Merit Systems Protection Board
Order Denying Petition for Review Dated November
Pe, BO 6 ods ccegedb acts adensectdencsdsetesess
Appendix D — Initial Decision of the Merit Systems
Protection Board Affirming the Agency’s Removal
Action Dated June 3, 1994 .........cccccccceces
Appendix E— StatutesInvolved ..................
Page
Ld
19, 20
la
3a
9a
12a
ve ee
l
Petitioner, Ismael R. Diaz, respectfully prays that a writ
of certiorari be issued to review the order and decision of the
United States Court of Appeals for the Federal Circuit issued
in the above proceeding October 17, 1995.
OPINIONS BELOW
The Court of Appeals denied petitioner’s request for a
rehearing and a suggestion for a rehearing in banc on October
17, 1995. (App. A, la). On August 21, 1995 the Court of
Appeals sustained the removal action and the prior Merit
Systems Protection Board’s (MSPB) decisions by holding that
an agency’s violation of a statutory procedural requirement
does not necessarily invalidate the agency action, especially
where Congress has not expressed any consequences for such
a procedural violation. (App. B, 6a). The MSPB denied a
petition for review on November 18, 1994 holding that the
petition did not meet the criteria for review set forth at 5 C.F.R.
§ 1201.115. (App. C, 10a). The MSPB sustained the removal
action in its initial decision entered June 3, 1994 holding that
failure to follow the statutory and regulatory time limitations
was a procedural violation to be considered under the harmful
error criteria of § 71701(c)(2)(A) and arguments regarding
prohibited personnel practices and not in accordance with law
were without merit. (App. D).
STATEMENT OF JURISDICTION
The Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1). Jurisdiction in the Court of Appeals was invoked
under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
Jurisdiction of the MSPB for the petition for review was
invoked under 5 U.S.C. § 7701(e)(1) and 5 C.F.R. § 1201.114
et seq. The initial appeal to the MSPB was submitted under the
jurisdiction of 5 U.S.C. § 4303(e), 5 U.S.C. § 7701(a) and 5
C.F.R. Part 1201.
een iam
2
STATUTORY PROVISIONS INVOLVED
This case involves the relationship between Chapters 23,
43 and 77 Title 5 United States Code.
STATEMENT OF THE CASE
A writ of certiorari is requested in this case to allow this
Court to review the court of appeals’ decision (App. B) that
failure to remove Diaz within the statutory period was a
procedural error subject to harmful error analysis and
argument that the Air Force committed prohibited personnel
practices was without merit. A brief summary of the
background facts and proceedings follows.
Diaz was employed as a GS 13 chemist by the Air Force at
Kelly Air Force Base, Texas when on January 28, 1993 he was
notified that his performance was unsatisfactory in critical
elements 2 and 3 of his performance plan and was given 60
days to improve.
On April 16, 1993 Mr. Dunn, the immediate supervisor
prepared a rating for the period October 29, 1992 to April 15,
1993 on which his overall performance was rated as
“Unacceptable.” Mr. Diaz was notified that his performance
continued to be unsatisfactory in Elements 3 and 4 and was
given until July 23, 1993 to bring his performance up to a fully
successful level.
An annual performance evaluation and appraisal was
completed for the period July 1, 1992 to June 30, 1993 which
was signed by the rater on August 21, 1993, reviewed by Mr.
Makris on August 24, 1993 and signed by Diaz on September
10, 1993. The rating indicates that petitioner did not meet the
requirements of elements 2, 3, and 4 and had an overall rating
3
of “Unacceptable”. On September 20, 1993 Mr. A.B. Haswell
informed the Civilian Personnel Office that the supervisor had
incorrectly assigned a “did not meet” rating to Element 2E.
On October 26, 1993 Mr. Dunn issued a notice of
proposed removal for unacceptable performance from
October 29, 1992 to October 26, 1993 on performance
elements 3 and 4 of the performance plan. The letter states that
“you are hereby notified that it is proposed to remove you from
the Federal Service not earlier than 30 days from your receipt
of this letter.” A reply to the proposed notice was submitted on
November 16, 1993.
The letter of final decision/removal was issued on
February 2, 1994 with an effective date of removal of
February 11, 1994.
An appeal was sent to the Dallas Regional MSPB Office
and on June 3, 1994 an initial decision was issued which
sustained the removal. (App. D). A petition for review was
submitted to the Merit Systems Protection Board and on
November 18, 1994 the Board denied the petition on the
grounds that it did not meet the criteria for review set forth at 5
C.ER. § 1201.115. (App. C, 10a).
The United States Court of Appeals for the Federal Circuit
was asked to review the MSPB decision and after oral
argument the court on August 21, 1995 affirmed the MSPB.
(App. B, 4a).
A motion for rehearing was submitted with a suggestion
that the rehearing be in banc and that was denied on October
17, 1995. (App. A, 1a).
4
REASONS FOR GRANTING THE WRIT
The decision of the court of appeals in this case appears to
be in direct conflict with the provisions of Chapters 23, 43 and
77 Title 5 U.S.C., with prior decisions of this Court and with
prior decisions of the court of appeals governing removal
actions from federal service for unacceptable performance
pursuant to Chapter 43 Title 5 U.S.C. The court of appeals and
the MSPB have foreclosed the use of affirmative defenses
provided by Congress and delineated in 5 U.S.C.
§ 7701(c)(2)(B) and (C).
I.
WHETHER THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT ABUSED ITS
DISCRETION AND DENIED DUE PROCESS BY
RELYING ON THE SUPREME COURT DECISON,
BROCK V. PIERCE COUNTY, 476 U.S. 253, 259-260 (1986)
IN DETERMINING THAT VIOLATION OF 5 U.S.C.
§ 4303(c) WAS SIMPLY A PROCEDURAL VIOLATION
TO BE CONSIDERED AS HARMFUL ERROR UNDER 5
U.S.C. § 7701(c)(2)(A).
Argument was put to the MSPB and the court of appeals
that the legal, statutory and regulatory right to take the
removal action had long expired before the decision was
issued and the agency’s action was in violation of the law,
OPM and agency regulations and must be reversed as being
not in accordance with law under 5 U.S.C. § 7701(c)(2)(C).
The MSPB initial decision acknowledged:
... it is clear that the appellant’s advance
notice period expired after thirty days.
5
Without any extension to that notice period,
the agency should have issued its decision
on the proposal not later than thirty days
after the time, or sixty days after October
26, 1993, which was December 25, 1993.
Thus, the agency failed to follow the
procedures regarding the notice period as
set forth in 5 U.S.C. § 4303 and 5 C.F.R.
§ 432.107. Even though the agency
committed error by this delay, it is subject
to the harmful error analysis. Faust, 29
M.S.P.R. at 499....
(App. D, 41) and at footnote 18 stated:
The appellant alleged that his claim that the
agency exceeded the notice requirements
set forth in 5 U.S.C. § 4303 is an affirmative
defense in violation of the law, rather than
harmful error. This issue has previously
been resolved by the Board, however, and it
was determined that a violation of these
notice requirements can be the basis for
reversing an agency action only if harmful
error is proven. See, ¢.g., Faust v.
Smithsonian Institution, 29 M.S.P.R. 496.
499 (1985).
(App. D, 38a).
The court of appeals rejected Diaz’s argument by stating:
An agency’s violation of a statutory
procedural requirement does not
necessarily invalidate the agency action,
6
especially where Congress has _ not
expressed any consequences for such a
procedural violation.
Citing Brock v. Pierce County, 476 U.S. 253, 259-60 (1986)
(App. B, 6a). Further, the court of appeals stated that in
analyzing the statutory language of 5 U.S.C. § 7701(c)(2)(A)
regarding harmful error that: “... we have previously held
that an employee challenging an agency action has the burden
to prove that a violation of a statutory procedure was harmful
...” citing Handy v. United States Postal Service, 754 F.2d
335, 338 (Fed. Cir. 1985) (App. B, 7a).
A review of Handy, supra, will reveal that the court of
appeals discussed the difference between harmful error
(§ 7701(c)(2)(A)) and decision not in accordance with law
(§ 7701(c)(2)(C)) and noted that the two paragraphs are not
directed to the same end. Harmful error in procedures
(paragraph A) raises the question: Did the wrongful
procedures harm the employee in the presentation of his
defenses so that a different result might have been reached?
Paragraph (C) on the other hand, is directed to the decision
itself. Was the decision in its entirety in accordance with law?
The Federal Circuit had previously explored, examined
and explained the interrelationship of Chapters 23, 43, 75, and
77 Title 5 USC as amended in 1978 by the CRSA. Lovshin v.
Dept. of Navy, 767 F.2d 826 (Fed. Cir. 1985) [85 FMSR 7038],
cert. denied, 475 U.S. 111 (1986). Some applicable comments
made by the court of appeals include: (1) The MSPB is without
authority to change the statutory design (at 841); (2) Under
§ 2302(b)(11) it is a prohibited personnel practice to violate
the merit principles set out in § 230 (at 833); and (3) An
employee sought to be removed under Chapter 43 is entitled to
be rated on reasonable standards and to have the specific
Fr eee mar Em TT re erm eee
7
procedures of Chapter 43 applied in connection with those
standards. This protection is the quid pro quo for the lesser
burden on the agency under that chapter (at 842).
Congress, in P.L. 95-454 (1978) authorized a different
procedure to be followed in removal for unacceptable
performance. Chapter 43 Title 5 U.S.C. prescribes procedures
but also places a statutory limitation on the action. Congress
first provided for a procedure to extend the notice period by
stating:
An agency may, under regulations
prescribed by the head of such agency,
extend the notice period under subsection
(b)(1)(a) of this section for not more than 30
days. An agency may extend the notice
period for more than 30 days only in
accordance with regulations issued by the
Office of Personnel Management.
5 U.S.C. § 4303(b)(2) but then decreed:
The decision to retain, reduce in grade or
remove an employee (1) shall be made
within 30 days after the date of the
expiration of the notice period. . . .
5 U.S.C. § 4303 (c)(1).
The legislative history of P.L. 95-454, Civil Service
Reform Act of 1978 provides an explanation of the law in
question, to-wit:
Section 4303 places two restrictions on
agencies to assure prompt decisions on
8
proposed demotions and removals. First,
subsection (c) states that an agency may
provide the employee with a notice period
of more than 60 days only in accordance
with regulations issued by the Office of
Personnel Management. Second, an agency
has a maximum of 30 days from the date the
notice expires in which to issue a decision
to retain, remove or demote an employee.
1978 U.S. Code Cong. & Admin. News at 2765.
Chief Justice Burger in Rubin v. United States,449 U.S.
422, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981) held that when the
terms of a statute are unambiguous, judicial inquiry is
complete except in rare and exceptional circumstances.
Justice White indicated that where the word, “shall” appears in
a statutory directive, Congress could not have choosen
stronger words to express its intent that the (specific action) be
mandatory. United States v. Monsanto, 491 U.S. 600, 607, 109
S. Ct. 2657, 2662, 105 L. Ed. 2d 512 (1989) cited in Plaut v.
Spendthrift Farm Inc., 1 F.3d 1487 (6th Cir. 1993). Justice
Thomas in Connecticut National Bank v. Germain, 112 S. Ct.
1146 (1992) stated that the Courts must presume that a
legislature says in a statute what it means and means in a
statute what it says there, citing inter alia, Rubin, supra.
The court of appeals erred in relying on Brock because its
own prior decisions have delineated the consequences for the
procedural violation of Chapter 43 Title 5 U.S.C. and the
defenses afforded to employees as delineated in Chapter 77
Title 5 U.S.C. The court of appeals ignored the wording of
5 U.S.C.§ 4303(c)(1) by claiming Congress did not specify the
consequences for failure to follow the law. The time limitation
expressed in § 4303(c)(1) was clear and unambiguous and the
9
court of appeals knew or should have known that the
consequences of failure to follow the law were delineated by
Congress in Chapter 77 Title 5 U.S.C.
Il.
WHETHER THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT ABUSED ITS
DISCRETION AND DENIED DUE PROCESS BY
FAILURE TO FOLLOW PRIOR SUPREME COURT
DECISIONS IN McCORMACK V. UNITED STATES, 204
CT. CL. 371 (CT. CL. 1974); YUNI V. MSPB, 784 F.2D 381
(FED. CIR. 1986) [86 FMSR 7017]; MORTON V. RUIZ, 415
U.S. 199, 94 S. CT. 1055, 39 L. ED. 2D 270 (1974);
SERVICE V. DULLES, 354 U.S. 363, 77 S. CT. 1152, 1 L.
ED. 2D 1403 (1957); CLEVELAND BOARD OF
EDUCATION V. LOUDERMILL, 470 U.S. 546 (1985);
UNITED STATES V. MONSANTO, 491 U.S. 600, 607, 109 S.
CT. 2657, 2662, 105 L. ED. 2D 512 (1989) AND IN ITS
OWN DECISIONS IN BARACCO V. DEPARTMENT OF
TRANSPORTATION, (83 FMSR 7021] (1983), AFF ’D, 735
F.2D 488 (FED. CIR.) [84 FMSR 7028], CERT. DENIED,
469 U.S. 1018 (1984); HANDY V. UNITED STATES
POSTAL SERVICE, 754 F.2D 335-38 (FED. CIR. 1985) (85
FMSR 7003); LOVSHIN V. DEPT. OF NAVY, 767 F.2D 826
(FED. CIR. 1985) [85 FMSR 7038], CERT. DENIED, 475
U.S. 1111 (1986) AND SHIFLETT V. U.S. POSTAL
SERVICE, CIV. NO. 87-3391 (FED. CIR. FEB. 8, 1988) [88
FMSR 7008].
The court of appeals has previously held that: “It is well
settled that valid regulations have the force and effect of laws”
_. and “An agency must follow all applicable procedures. See
McCormack v. United States, 204 Ct. C1. 371 (Ct. Cl. 1974);
Yuni v. MSPB ,784 F2d 381 (Fed. Cir. 198) [86 FMSR 7017];
Morton v. Ruiz, 415 U.S. 199, 94S. Ct. 1055, 39 L. Ed. 2d 270
10
(1974); Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L.
Ed. 2d 1403 (1957); cited in Shiflett v. U.S. Postal Service, 88
FMSR 7008. The agency did not follow the law, Chapter 43,
Title 5 U.S.C., the OPM Regulation, 5 C.F.R.,§ 432.106 and
the agency regulation AFR 40-452.
The court of appeals in Shiflett, supra, in ruling that the
agency failed to provide notice of appeal rights held that it is
well established that valid regulations have the force and
effect of laws. The respondent does not contest the validity of
the regulations in this case. There is no question but what
respondent was required by law to comply with the
regulations. This it wholly failed to do.
The Office of Personnel Management issued its
regulation, 5 C.F.R. Part 432, and also placed a regulatory
limitation on such actions. The OPM regulation provides for
an extension of the notice period (§ 432.106(a)(4)(i)) and then
directs:
. .. The agency shall make its final decision
within 30 days after expiration of the
advance notice period.
(5 C.F.R. 432.106(b)). The Air Force also put restrictions on
the regulatory authority to take a Chapter 43 removal in its
regulation:
(a) The notice period expires absolutely
at the end of the 30 days UNLESS extended
for no more than 30 additional days by
authority of the MAJCOM or comparable
organization, or, according to terms of a
collective bargaining agreement. (The
MAJCOM extension approval may be
delegated to base level).
a a
1]
(Paragraph 5-4(c)(4)(a) AFR 40-452) (emphasis is in the
regulation) and:
.. a) The final decision will not be made
until the day after the advance notice period
expires but must be made within 30
calendar days after the expiration of the
notice period... .
(Paragraph 5-4(c)(5) AFR 40-452).
The OPM and the agency followed the law established by
Congress and directed in mandatory terms that the decision
had to be issued within 30 days after the expiration of the
notice period. It was acknowledged by the agency and the
MSPB that the decision was issued after the time limitation
had expired.
The court of appeals failed to answer its own question
raised in Handy, supra, i.e.: Was the decision in its entirety in
accordance with law? The decision was not in accordance with
law because the time limitation had long expired.
The agency not only violated the law but also violated the
OPM regulation and its own regulation by not issuing the
decision within the time limitations. The Court of Appeals
placed the burden of proving “harm” on Mr Diaz by stating the
violation was a procedural violation to be considered under
the “harmful error” criteria of § 7701(c)(2)(A). (App. B, 7a).
12
Il.
WHETHER THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT AND THE
MERIT SYSTEMS PROTECTION BOARD HAS
EFFECTIVELY NEGATED THE CONGRESSIONAL
MANDATE OF AFFIRMATIVE DEFENSES CONTAINED
IN 5 U.S.C. § 7701(c)(2)(B) AND 5 U.S.C. § 7701(c)(2)(C)?
Long ago, the United States Supreme Court held that )
procedural rights are not second class rights. Their |
enforcement is essential to the preservation of substantive |
rights. Anti-Fascist Committee v. McGrath, 341 U.S. 123, 149
(195i) and, a court’s duty to enforce an agency regulation is
most evident when compliance with the regulation is
mandated by the Constitution or federal law. United States v.
Caceres, 99 S. Ct. 1465, 1470 (1979) cited in Page v. Bolger,
645 F.2d 227 (C.A. 4 1981).
Congress imposed a lesser burden on agencies effecting a
Chapter 43 removal in that it had only to prove its case by
substantial evidence (5 U.S.C. § 7701(c)(1)(A)) but provided
“affirmative defenses” which holds that the agency decision
may not be sustained if the employee shows: (A) harmful error
in the application of the agency's procedures in arriving at
such decision; (B) the decision was based on any prohibited
personnel practice described in 5 U.S.C. § 2302(b) or; (C)
shows that the decision was not in accordance with law. 5
U.S.C. § 7701(c)(2).
Congress has decreed that any employee who has the
authority to take, direct others to take, recommend, or approve
of any personnel action shall not with respect to such authority
(5 U.S.C.§ 2302(b), emphasis added) — take or fail to take any
other personnel action if the taking or failure to take such
13
action violates any law, rule, or regulation implementing, or
directly concerning the merit system principles contained in
section 2301. (5 U.S.C.§ 2302(b)(11) ).
The agency regulation, Chapter 5, AFR 40-452 states:
(a) The notice period expires absolutely at
the end of the 30 days UNLESS extended
for no more than 30 additional days by
authority of the MAJCOM or comparable
organization, or, according to terms of a
collective bargaining agreement. (The
MAJCOM extension approval authority
may be delegated to base level.)
(b) Further extension of the notice period
can be approved only by OPM; and OPM
has no statutory authority to extend a notice
period that has expired. Accordingly, if the
base or MAJCOM wants further extension,
the request with justification, including the
purpose and amount of time required, will
be sent by the fastest method direct to:
Appellate Polices Division, Office of
Personnel Management, Room 7459, 1900
E Street NW Washington DC 20415.
Paragraph 5-4 AFR 40-452 and
(a) The final decision will not be made
until the day after the advance notice
expires but must be made within 30
calendar days after the expiration of the
notice period.
14
Par. 5-4(c)(5)(a) AFR 40-452.
The agency obtained no extensions and did not issue the
decision in the time limitation directed by the law and
regulations. Arguments that the action was negated by the
obvious prohibited personnel practices and not being in
accordance with law were dismissed as being without merit
because the violation was simply a “procedural violation.”
The MSPB held in Baracco v. Department of
Transportation, 83 FMSR 7021, an adverse action under
Chapter 75, which was affirmed by the court of appeals and
writ denied by the Supreme Court that:
the “harmful error” standard is
applicable in our review of an agency’s
failure to comply with a statutory
procedure provided in 5 U.S.C. §7513....
and,
In our view, the way to give meaning to
both of these sections is to read the harmful
errors provision as applicable to all
procedural errors and to read not in
accordance with laws provision as
applicable to other unlawful actions.
then
The Board concludes, therefore, that
agency procedural errors in arriving at
decisions in cases appealable to the Board
are subject to review under the harmful
errors standard of 5 U.S.C.
§ 7701(c)(2)(A).
:
,
:
|
15
In Faust v. Smithsonian Institute, 29 M.S.P.R. 496, 499
(1985) the Board stated:
The Board has previously held that the
notice requirements of 5 U.S.C. § 4303 are
procedural in nature and subject to a
harmful error analysis. See Coltrane v.
Department of the Army, 25 M.S.P.R. 397,
403 (1984); Sandland v. General Services
Administration, 23 M.S.P.R. $83, 590 n. 11
(1984) Thus, since appellant has failed to
establish how the agency’s failure caused
substantial harm or prejudice to her rights,
it does not constitute a basis for reversal of
the agency action. See Baracco v.
Department of Transportation, 15 M.S.P.R.
112 (1983), aff'd, 735 F.2d 488 (Fed. Cir.
1984).
In Stephen v. Department of the Air Force, [91 FMSR
5192] the Board modified its prior decisions reversing agency
actions for “harmful error” based solely on the agency's
failure to afford employees their statutory or regulatory
procedural rights.
The Board held, that when an appealable
action against a nonprobationary federal
employee has not been effected in
accordance with the minimum procedures
that satisfy the constitutional requirements
of due process of law under Cleveland
Board of Education v. Loudermill, 470 U.S.
532, 546 (1985) the action will be reversed
because it cannot withstand constitutional
scrutiny, rather than because the action
16
constitutes harmful error. In this case the
agency did not provide any of the
procedural protections of 5 U.S.C.
§ 7513(b) nor did it provide the appellant
with any other notice or opportunity to be
heard. Thus the Board finds that the agency
action must be set aside. Ginocchi v.
Department of the Navy 92 FMSR 5126
The MSPB on May 5, 1993 decreed:
... In a performance based action taken
under 5 U.S.C. Chapter 43, the agency must
prove all of the elements of its case, not
just.the unacceptability of the appellant’s
performance by substantial evidence. This
is so because the rights afforded appellants
under Chapter 43 are substantive, not
procedural. See e.g. Griffin v. Department
of the Army, 84 FMSR_ 5867,
reconsideration denied sub nom. Northam
v. Department of the Army, 85 FMSR 5409;
Eibel v. Department of the Navy, 857 F2d
1439 (Fed. Cir. 1988) [88 FMSR 7027];
Weirauch v. Department of the Army, 782
F2d 1560 (Fed. Cir. 1986) [85 FMSR
7007; Sandland v. General Services
Administration, [84 FMSR 5871] Thus, the
Board will not sustain any agency action
taken under Chapter 43, even if the agency
proves that the appellant’s performance
was unacceptable, if the agency does not
prove the other elements of a Chapter 43
action, including that the appellant was
given a reasonable opportunity to improve
his performance...
Nafus v. Department of the Army, 93 FMSR 5163 (emphasis
added).
17
On August 13, 1993 the MSPB decreed:
Hamilton v. U.S. Postal Service, 93 FMSR 5319 (citations
omitted).
. An agency action that is not in
accordance with law may not be sustained.
See 5 U.S.C. § 7701(c)(2)(C); An
appealable action is unlawful in its entirety
if there is no legal authority for it, and the
Board will reverse it as “not in accordance
with laws even if minimum constitutional
due process was afforded to appellant and
he has not shown harmful error, i.e. that the
alleged error prejudiced his rights so that
the outcome before the agency was
possibly affected. . .
The court of appeals in denying the petition stated:
... Under 5 U.S.C. §7701 (c) (2) (A)
(1994), a decision of an agency must be
reversed if the employee “shows harmful
error in the application of the agency’s
procedures in arriving at such decision.” In
analyzing this statutory language, we have
previously held that an employee
challenging an agency action has the
burden to prove that a violation of a
statutory procedure was harmful. Handy v.
United States Postal Serv., 754 F 2d 335, 38
(Fed Cir 1985) (“It is insufficient simply to
18
show that a statutory procedure was not
followed at the agency level. Harmful error
must be shown.”).
(App. B, 7a). Argument put to the MSPB and the court of
appeals was that the the agency committed prohibited
personnel practices and the decision was not in accordance
with law and must be reversed under 5 U.S.C.§ 7701(c)(2)(B)
and § 7701 (c)(2)(C)
Violation of merit principles (5 U.S.C. § 2301) has been
made a specific defense to appeals under Chapter 43 or
Chapter 75 Title 5 U.S.C. Moreover that defense is a
substantive one, not merely procedural. Lovshin v. Dept. of
Navy, 767 F.2d 826 at 835-36 (Fed. Cir. 1985).
The court of appeals in Lovshin discussed the MSPB case
of Wells v. Harris, 1 MSPB 199, 79 FMSR 7005, wherein the
MSPB discussed prohibited personnel practices associated
with § 4303 and noted that § 2302(b)(11) is the only provision
of the Act referring to a law, rule or regulations implementing
the merit system principles of § 2301 and that it would be
difficult to find a law which is more clearly designed to give
practical effect to merit system principle § 2301(b)(6) than
§ 4303(a).
The OPM regulation 5 C.F.R. Part 432 indicates that 5
U.S.C. § 4305 authorizes the Office of Personnel Management
to prescribe regulations to carry out the purposes of Title 5
Chapter 43, including 5 U.S.C. § 4303 which covers agency
actions to reduce in grade or remove employees for
unacceptable performance (5 C.F.R. § 432.101 ). 5 C.F.R. Part
432 is clearly a regulation which implements the Merit
Systems principles contained in Chapter 23 Title 5 U.S.C.
19
The agency regulation, AFR 40-452—Performance
Management Program, is a regulation directly concerned with
and implements the Merit System Principles contained in
Chapter 23 Title 5 U.S.C. The regulation states in part;
. When an employee’s performance
continues to be unacceptable after attempts
to improve performance fail and
reassignment or demotion is not feasible,
there is no justification for retaining the
employee. Removal from employment,
based on unacceptable performance, is
authorized by 5 U.S.C. 4303 and 5 C.F.R.
Part 432 of the OPM regulations...
Paragraph 5-4(c)(3) AFR 40-452.
The agency regulation, AFR 40-452, directly implements
the provisions of Chapter 43 Title 5 USC and the federal court
in Lovshin supra, found that the merit principles of § 2301(b)
(1), (2), (3), (6) and (7) were implemented by Chapter 43 Title
5 U.S.C. Any violation of the regulation (AFR 40-452) would
be a prohibited personnel practice under 5 U.S.C. § 2302(b)(11).
5 U.S.C. § 2302(b)(11) makes it a prohibited personnel
practice to:
Take or fail to take any other personnel
action if the taking of or failure to take such
action violates any law, rule, or regulation
implementing or directly concerning the
merit system principles contained in
section 2301 Title 5 U.S.C.
Paragraph 5-1(a) Air Force Regulation 40-452 directs:
20
a. At any time during the performance
appraisal cycle that the employee’s
performance in one or more critical
elements becomes less than fully
successful, the supervisor must inform the
employee of the critical element(s) for
which performance is unacceptable, in
what way it is unacceptable, and exactly
what is required to bring it to a fulls
successful level. The supervisor will
initiate an opportunity period to give the
employee a reasonable time to demonstrate
acceptable performance. This means an
amount of time commensurate with the
duties and _ responsibilities of the
employee’s position sufficient to allow the
employee to show whether he or she can
perform acceptably.
(Emphasis added).
Mr.. Diaz was simply advised to “take aggressive action
to address and satisfactorily complete assigned taskings in
accordance with management and/or regulatory established
time frames”, and “spend time more constructively addressing
the taskings for which you have been assigned responsibility.”
Failure to follow the provisions of Chapter 43, Title 5
U.S.C., the OPM Regulation (Part 432 C.F.R.) and the agency
regulation (AFR 40-452) constituted a prohibited personnel
practice under § 2302(b)(11) which negated the removal
action pursuant to 5 U.S.C.§ 7701(c)(2)(B).
The agency regulation, AFR 40-452, provides that the
notice period expires absolutely at the end of the 30 day unless
21
extended pursuant to the regulatory requirements for
extension.
The MSPB has recognized that Chapter 43 Title 5 U.S.C.
provides for greater protections for an employee before an
action has been taken than he would be entitled to under
Chapter 75, in return for the lessened burden of proof on an
agency once the action is effected. Sullivan v. Dept. of the
Navy, 90 FMSR 5268.
The court of appeals in Shiflett, supra, did not discuss the
affirmative defenses provided in Chapter 77 Title 5 U.S.C. but
simply held that the MSPB abused its discretion in denying a
waiver on the time limitation for filing an appeal. In Handy,
the court of appeals created the standard for reviewing a
decision by the question; “Was the decision in its entirety in
accordance with law?”
The court of appeals failed to address its own question in
this case but simply relied on the previous decisions that all
procedural violations must be considered under the harmful
error criteria of § 7701(c)(2)(A) which places the burden on
the employee to show that the decision would have been
different if it had not been for the procedural violations.
CONCLUSION
Congress gave federal employees three “affirmative
defenses” to counter improper agency personnel actions.
(5 U.S.C.§ 7701(c)(2)(A),(B) and (C)). Use of two of the
defenses have been negated by the court of appeals which held
that an agency’s violation of a statutory procedural
requirement does not necessarily invalidate the agency action,
especially where Congress has not expressed any
consequences for such a procedural violation, (App. B, 3a)
22
and that an employee challenging an agency action has the
burden to prove that a violation of a statutory procedure was
harmful. (App. B, 7a).
The defenses of prohibited personnel practices
(§ 7701(c)(2)(B)) and not in accordance with law
(§ 7701(c)(2)(C)) also requires showing that the agency's
action either violated any law, rule, or regulation
implementing or directly concerning the merit system
principles or that the decision was not in accordance with law.
These defenses have been negated by the blanket rule that all
procedural violations in law, rule or regulation will be
considered under the “harmful error” rule of 5 U.S.C.
§ 7701(c)(2)(A) The MSPB has in a few rare instances,
deviated from its blanket rule has ruled that procedural
violations were not in accordance with law.
Congress explained the reasons for placing a specific time
limitation on removals under Chapter 43 which was clear and
unambigous; therefore the decision issued after the time
limitation had expired was both a prohibited personnel
practice under 5 U.S.C. § 2302(b)(11) and not in accordance
with law. The writ of certiorari should be granted.
Respectfully submitted,
SHELBY W. HOLLIN
Attorney at Law
Counsel of Record
Attorney for Petitioner
7710 Stagecoach
San Antonio, Tx 78227
(210) 674-2584
la
APPENDIX A — ORDER DENYING PETITION FOR
REHEARING AND SUGGESTION FOR REHEARING
IN BANC DATED OCTOBER 17, 1995
United States Court of Appeals for the Federal Circuit
95-3149
ISMAEL R. DIAZ,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
ORDER
A combined petition for rehearing and suggestion for
rehearing in banc having been filed by the PETITIONER, and a
response thereto having been invited by the court and filed by the
RESPONDENT, and the petition for rehearing having been
referred to the panel that heard the appeal, and thereafter the
suggestion for rehearing in banc and response having been
referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same
hereby is, DENIED and it is further
ORDERED that the suggestion for rehearing in banc be, and
the same hereby is, DECLINED.
2a
Appendix A
The mandate of the court will issue on October 24, 1995.
FOR THE COURT,
FRANCIS X. GINDHART, CLERK
Dated: October 17,1995 By s/ Diane M. Frye
Diane M. Frye
Chief Deputy Clerk
cc: SHELBY W. HOLLIN
TODD M. HUGHES
DIAZ V AIR FORCE, 95-3149
(MSPB — DA0432940286I-1)
Note: Pursuant to Fed. Cir. R. 47.6, this order is not citable as
precedent. It is a public record.
3a
APPENDIX B — INITIAL ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT AFFIRMING THE MSPB ACTION DATED
AUGUST 21, 1995
United States Court of Appeals for the Federal Circuit
95-3149
ISMAEL R. DIAZ,
Petitioner,
v.
DEPARTMENT OF THEAIR FORCE,
Respondent.
Shelby W. Hollin, Attorney-At-Law, of San Antonio, Texas,
argued for petitioner.
Todd M. Hughes, Attorney, Commercial Litigation Branch,
Department of Justice, of Washington, D.C., argued for
respondent. With him on the brief were Frank W. Hunger,
Assistant Attorney General, David M. Cohen, Director and
Jeanne E. Davidson, Assistant Director.
Appealed from: Merit Systems Protection Board
da
Appendix B
United States Court of Appeals for the Federal Circuit
95-3149
ISMAEL R. DIAZ,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
DECIDED: August 21, 1995
Before LOURIE, CLEVENGER, and SCHALL, Circuit Judges.
CLEVENGER, Circuit Judge.
Ismael R. Diaz seeks review of a decision of the Merit
Systems Protection Board (Board) Docket No. DA0432940286-
I-1, in which the Board affirmed the Department of the Air
Force’s decision to remove Diaz from government service for
unacceptable performance. We affirm.
I
Before his removal, Diaz was a GS-13 Chemist in the
Directorate of Aerospace Fuels Management at Kelly Air Force
Base, Texas. On January 28, 1993, the Air Force put Diaz on a
performance improvement plan and notified him that his
performance in one of his critical elements was unacceptable. On
Sa
Appendix B
April 16, 1993, the Air Force gave Diaz another notice that his
performance was unacceptable and initiated a second
performance improvement period. This notice also stated that
Diaz’s performance was deficient in another critical element. On
October 26, 1993, Diaz was given a notice of proposed removal,
and on February 2, 1994, the agency issued a final decision
removing Diaz, effective February 11, 1994. Diaz appealed to the
Board.
In an initial decision, the administrative judge (AJ) affirmed
the Air Force’s decision to remove Diaz. The AJ found that Diaz
was given proper notice that his performance was unacceptable
and was given ample opportunity to improve performance. The
AJ then found that there was substantial evidence to support the
agency's charge that Diaz’s performance under the two critical
elements was unacceptable. The AJ rejected Diaz’s argument that
his removal should be reversed because the time period between
the notice of proposed removal and his actual removal was too
long. The AJ acknowledged that, under 5 U.S.C. § 4303(c)(1)
(1994), a decision regarding a proposed removal “shall be made
within 30 days after the expiration of the notice period,” but
stated that Diaz’s allegation of a procedural error was an
affirmative defense analyzed under the harmful error analysis.
The AJ found that Diaz did not allege any evidence to support his
allegation that the error was harmful, and therefore the AJ
concluded that the error could not be cause for reversal.
The initial decision became the final decision of the Board
after the full Board denied Diaz’s petition for review. Diaz then
sought review in this court.
6a
Appendix B
II
A decision of the Board must be affirmed unless we find it to
be arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures required by
law, rule, or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (1994); Holland v.
Department of Air Force, 31 F.3d 1118, 1120 (Fed. Cir. 1994).
Diaz argues that his removal was invalid because the Air
Force’s decision removing Diaz was issued more than 30 days
after Diaz’s notice period expired. Under 5 U.S.C. § 4303(c)(1),
the decision to remove an employee “shall be made within 30
days after the date of expiration of the notice period.” It is
undisputed that Diaz was given notice of his proposed removal on
October 26, 1993, triggering a notice period that expired on or
around November 25, 1993. Additionally, it is undisputed that the
agency’s decision regarding the proposed removal was issued on
February 2, 1994 — well over 30 days after the expiration of the
notice period. Therefore, according to Diaz, his removal was
achieved by erroneous procedures and should thus be reversed.
We must reject Diaz’s argument. An agency’s violation of a
statutory procedural requirement does not necessarily invalidate
the agency action, especially where Congress has not expressed
any consequences for such a procedural violation. See Brock v.
Pierce County, 476 U.S. 253, 259-60 (1986); see also Kemira
Fibres Oy v. United States, No. 95-1077, slip op. at 10-13, 1995
U.S. App. LEXIS 20440 (Fed. Cir. Aug. 2, 1995). In the present
case, the Board concluded that the failure to remove Diaz within
the statutory period was a procedural error subject to harmful
error analysis. The Board further found that Diaz failed to meet
his burden of proving that he was harmed by the procedural error.
We cannot find error in the Board’s conclusions.
7a
Appendix B
Under 5 U.S.C. § 7701(c)(2)(A) (1994), a decision of an
agency must be reversed if the employee “shows harmful error in
the application of the agency’s procedures in arriving at such
decision. In analyzing this statutory language, we have
previously held that an employee challenging an agency action
has the burden to prove that a violation of a statutory procedure
was harmful. Handy v. United States Postal Serv., 754 F.2d 335,
338 (Fed. Cir. 1985) (“It is insufficient simply to show that a
statutory procedure was not followed at the agency level.
Harmful error must be shown.”).
The situation in the present case is analogous to that in the
Handy case. In Handy, the petitioner argued that his statutory
right, under 5 U.S.C. § 7513(b)(2), to make an oral reply to a
proposed removal had been denied and thus his removal was not
“in accordance with the law.” We held that, since the petitioner
made no effort to show that the procedural error affected the
agency’s decision, there was no basis for reversing the agency’s
decision. Handy, 754 F.2d at 337-38. In the present appeal, Diaz
simply argues that his removal should be reversed because of the
agency’s failure to abide by the statutory time limit in 5 U.S.C,
§ 4303(c)(1). He did not argue or submit any evidence that
showed that the agency’s procedural violation affected the
outcome of the agency’s decision or was in any way harmful.
Therefore, the Board properly declined to reverse the agency’s
decision to remove Diaz.
Diaz argues that the harmful error analysis in Handy does not
apply in his situation because Handy involved a removal under 5
U.S.C., Chapter 75, whereas Diaz was removed under 5 U.S.C.,
Chapter 43. We must reject this argument. The statute pertaining
to employee appeals of adverse actions to the Board, 5 U.S.C.
§ 7701 (1994), does not distinguish between removal actions
under Chapter 75 and removal actions under Chapter 43. We see
Appendix B
no reason to apply the harmful error rule of 5 U.S.C.
§ 7701(c)(2)(A) to Chapter 75 removals and not to Chapter 43
removals. See Martin v. Federal Aviation Admin. , 795 F.2d 995,
999 (Fed. Cir. 1986) (applying the harmful error rule discussed in
Handy to a Chapter 43 proceeding).
Diaz also argues that the Air Force did not adequately
communicate the performance standards for his employment
position and that the Air Force generally committed prohibited
personnel practices. After carefully examining these arguments,
we conclude that they are without merit.
Because the Board’s decision is in accordance with the law
and is supported by substantial evidence, that decision must be
sustained.
Nocosts.
AFFIRMED
9a
APPENDIX C— FINAL MERIT SYSTEMS PROTECTION
BOARD ORDER DENYING PETITION FOR REVIEW
DATED NOVEMBER 18, 1994
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOCKET NUMBER
DA-0432-94-0286-I-1
ISMAEL R. DIAZ,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.
Shelby W. Hollin, Esquire, San Antonio, Texas, for the appellant.
Bernard Glavy, Esquire, Kelly Air Force Base, Texas, for the
agency.
BEFORE
Ben L. Erdreich, Chairman
Jessica L. Parks, Vice Chairman
Antonio C. Amador, Member
10a
Appendix C
ORDER
After full consideration, we DENY the appellant’s petition
for review of the initial decision issued on June 3, 1994 because it
does not meet the criteria for review set forth at 5 C.F.R.
§ 1201.115. This is the Board’s final order in this appeal. The
initial decision in this appeal is now final. 5 C.F.R. § 1201.113(b).
NOTICE TO APPELLANT
You have the right to request further review of the Board’s
final decision in your appeal.
Discrimination Claims: Administrative Review
You may request the Equal Employment Opportunity
Commission (EEOC) to review the Board’s final decision on
your discrimination claims. See 5 U.S.C. § 7702(b)(1). You must
submit your request to the EEOC at the following address:
Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 19848
Washington, DC 20036
You should submit your request to the EEOC no later than 30
calendar days after receipt of this order by your representative, if
you have one, or receipt by you personally, whichever receipt
occurs first. See 5 U.S.C. § 7702(b)(1).
Discrimination and Other Claims: Judicial Action
If you do not request review of this order on your
discrimination claims by the EEOC, you may file a civil action
against the agency on both your discrimination claims and your
lla
Appendix C
other claims in an appropriate United States district court. See 5
U.S.C. § 7703(b)(2). You should file your civil action with the
district court no later than 30 calendar days after receipt of this
order by your representative, if you have one, or receipt by you
personally, whichever receipt occurs first. See 5 U.S.C.
§ 7703(b)(2). If the action involves a claim of discrimination
based on race, color, religion, sex, national origin, or a
handicapping 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.
§ 2000e5(f); 29 U.S.C. § 794a.
Other Claims: Judicial Review
If you choose not to seek review of the Board’s decision on
your discrimination claims, you may request the United State
Court of Appeals for the Federal Circuit to review the Board’s
final decision on other issues in your appeal if the court has
jurisdiction. See 5 U.S.C. § 7703(b)(1). You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 30
calendar days after receipt of this order by your representative, if
you have one, or receipt by you personally, whichever receipt
occurs first. See 5 U.S.C. § 7703(b)(1).
FOR THE BOARD: s/ Rober: E. Taylor
Robert E. Taylor
Clerk of the Board
Washington, D.C.
12a
APPENDIX D —INITIAL DECISION OF THE MERIT
SYSTEMS PROTECTION BOARD AFFIRMING THE
AGENCY’S REMOVALACTION DATED JUNE 3, 1994
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALLAS REGIONAL OFFICE
DOCKET NUMBER
DA-0432-94-0286-I-1
ISMAEL R. DIAZ,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.
Shelby W. Hollin, Esquire, San Antonio, Texas, for the appellant.
Bernard Glavy, Esquire, Kelly Air Force Base, Texas, for the
agency.
BEFORE
William W. Carnes
Administrative Judge
13a
Appendix D
INITIAL DECISION
Ismael Robert Diaz appealed to the Board on February 12,
1994, from an action by the agency which removed him, effective
February 11, 1994, for unacceptable performance. The Board has
appellate jurisdiction over this timely-filed appeal. See 5 U.S.C.
§§ 4301-4303. A hearing was conducted on this appeal at the
appellant’s request.
The appealed action is AFFIRMED.
ANALYSIS AND FINDINGS
The action was based on the appellant's failure to meet two
critical elements of his position.
On October 26, 1993, T.R. Dunn, Chief of the Special Fuels
Laboratory Branch, issued a notice to the appellant, a GS-13
Chemist in the Directorate of Aerospace Fuels Management at
Kelly Air Force Base, Texas, advising him that he was proposing
the appellant’s removal for unacceptable performance. See
appeal file, tab 6(4f). In this proposal, Dunn, the appellant's first-
level supervisor, referred to the letter he had issued to the
appellant on January 28, 1993, advising him that his performance
was unacceptable in critical job element 3E, and allowing him a
60-day opportunity period to improve his performance." /d., tab
6(4iii). The proposal alleged that the appellant’s unacceptable
performance in critical element (CE) 3E continued during this
60-day PIP, and that his performance also became unacceptable
in CE 4E. Thus, on April 16, 1993, the appellant was notified that
his opportunity-to-improve period was extended to July 23,
1, This opportunity-to-improve period is also known as a performance
improvement period (PIP).
l4a
Appendix D
1993. Id., tab 6(4tt). The proposal charged that the appellant’s
performance remained unacceptable i, both of these critical
elements at the end of this second PIP and had not improved to an
acceptable level in the three months after the PIP ended up to the
time the proposal was issued. The proposal cited specific
examples of the appellant’s performance failures in each of these
two elements. /Jd., tab 6(4f).
The appellant made a written reply on November 16, 1993,
to this proposal in which, inter alia, he asked that the Chief of the
Technical Division, N.K. Makris, his second-level supervisor,
recuse himself as the deciding official. Jd., tab 6(4d). On
November 24, 1993, Colonel Grat H. Horn, Jr., the Director of
Aerospace Fuels Management, granted the appellant’s request
and substituted himself as the deciding official. Jd., tab 6(4c).
Horn issued the appellant a notice dated February 2, 1994,
advising him that he agreed the appellant’s performance in
critical elements 3E and 4E was unacceptable, and it was his
decision to remove the appellant from employment with the
agency. /d., tab 6(4b).
The agency must prove the elements of its action by substantial
evidence.
An action based on unacceptable performance, pursuant to 5
U.S.C. Chapter 43, as here, must be sustained if the agency’s
decision is supported by substantial evidence.? 5 U.S.C.
§ 7701(c) (1) (A). As to one of the elements of the case, the parties
stipulated that the agency’s performance appraisal system
2. Substantial evidence is, “The degree of relevant evidence that areasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree.” 5 C.F.R.
$ 1201.56(c\1) (1994); see also Parker v. Defense Logistics Agency, 1 M.S.P.R.
505, 530-31 (1980).
15a
Appendix D
applicable to the appellant was approved by the Office of
Personnel Management (OPM).’ See stipulation No. 4, in appeal
file, tab 12; Griffin v. Department of the Army, 23 M.S.P.R. 657
(1984), reconsideration denied, Nothman v. Department of the
Army, 29 M.S.P.R. 190 (1985).
The agency also must show that it communicated to the
appellant the performance standards and critical elements of his
position. See Cross v. Department of the Air Force, 25 M.S.P.R.
353, 357 (1984), aff'd, 785 F.2d 320 (Fed. Cir. 1985) (Table). The
record shows that in October 1992 the appellant received and
signed for the performance standards and critical elements for his
position and, in addition, he stipulated that he was aware of
them.‘ Appeal file, tabs 6(4ppp) and 12.
In order to prevail on a Chapter 43 action, the agency must
establish that it advised the appellant that he was not meeting the
performance standards for the critical elements in question and
that it provided him a reasonable opportunity to demonstrate
acceptable performance in those applicable elements. See
Sandland v. General Services Administration, 23 M.S.P.R. 583
(1984). I find that the January 28, 1993 PIP notice advised the
appellant that his performance was considered unacceptable in
CE 3E.° The April 16, 1993 PIP notice included information
about his performance continuing to be unacceptable in 3E, and
3. The parties may stipulate to any matter of fact, and that stipulation satisfies
the burden of proving that fact. 5C.F.R. § 1201.63 (1994).
4. There are five elements under the appellant’ s performance plan; elements
1E, 3E, and 4E are designated as critical while 2E and SE are non-critical. See appeal
file, tab 6(4ppp).
5. Element 3E of the performance pian requires that the »ppellant “executes |
(Cont'd)
i
16a
Appendix D
also that it was now unacceptable in CE 4E.° This second PIP did
not end until July 23, 1993. I find that the length of time involved
in these PIPs afforded the appellant a reasonable time to improve
his performance to an acceptable level in both CEs. See, e.g.,
Wood v. Department of the Navy, 27 M.S.P.R. 659, 663 (1985) (a
30-day PIP complies with the 5 U.S.C. § 4302(b)(6) requirement
to provide a reasonable opportunity for improvement).
Cont’
paral ER Ne ER By Og SE
directorate, branch and/or laboratories as assigned.” See appeal file, tab 6(4ppp).
The kinds of tasks described under this CE are: investigates and responds to
customer and management inquiries; performs inspections; processes waivers;
directs the accomplishment of special studies/projects by the laboratories; prepares
correspondence and reports; investigates and resolves problems; responds to
audits; researches literature; provides training; schedules, attends and reports on
meetings/conferences; collects/distributes information; conducts surveys and
investigations; prepares and gives briefings; makes telephone surveys; reviews and
updates publications; etc. There are two components under this element. Each one
establishes the specific standards for tasks assigned from different levels of
management — 3Sa covers tasks generated from the Branch or lower levels, while
3Sb pertains only to tasks generated at the Division or higher levels. Jd.
6. Element 4E requires that the appellant “monitor the quality of laboratory
testing and reporting operations for assigned categories of samples [the appellant's
assigned category is lubricant and grease samples].” See appeal file, tab 6(4ppp).
This CE involves maintaining a consolidated listing of laboratory test capabilities,
product test requirements, and test attention times; reviewing test reports to assess
lab compliance with applicable standards; maintaining a listing of testing and
reporting deficiencies for each lab; directing actions to effect corrections;
investigating related customer complaints, etc. This CE has two component
standards — the first, 4Sa, requires examinations and inspections of lab test reports
in assigned categories to ensure the lab testing and reporting operations are in strict
compliance with established testing, reporting and formatting standards; 4Sb
pertains to accuracy and the allowable testing and reporting errors detection
requirements. Jd. The appellant is charged only with failing to perform acceptably
in 4Sa, thus, the 4Sb standard is not applicable to this action.
EO OR Me CORN ET Te
——E
17a
Appendix D
Additionally, Dunn issued the appellant an out-of-cycle
performance appraisal, dated April 16, 1993, indicating that the
appellant was not meeting his performance requirements in CEs
3E and 4E. See appeal file, tab 6(4rr). With that appraisal, he also
gave the appellant a letter entitled “Performance Requirements
and Milestones” which provided explanation and guidance
regarding these two CEs. /d. at tab 6(4ss). These documents,
along with the two PIP notices, as well as the performance
standards themselves, clearly informed the appellant what was
expected of him in relation to CEs 3E and 4E, and that he must
improve his performance to the level of “meets” in these two
elements in order for his performance to be rated acceptable.’
The PIP notices did not increase or decrease the established
requirements set by the performance standards for these two CEs,
which had been in place since October 1992, and cross referenced
those standards. See appeal file, tabs 6(4tt and 4iii).
I find that the agency has shown by substantial evidence that
the appellant knew what his performance standards were, his
performance was subsequently rated unacceptable, he was
informed of his failure to meet these standards, and he was then
afforded an oppor'inity to improve his performance, I find
further that the appellant was clearly placed on notice that he
would be evaluated under his regular performance standards
during the PIPs. Accordingly, the agency has proven, by more
than substantial evidence, that before this adverse action was
7. Each of the elements under this performance plan allow for three rating
levels: meets, fails to meet, or exceeds. See appeal file, tab 6(4ppp). The overall
appraisal then provides for a summary rating of five levels: superior, excellent, fully
successful, minimally acceptable, and unacceptable. /d. at tab 6(4rr). The fully
successful level is when the employee meets the requirements of all elements under
the plan. A fails-to-meet rating in any CE will result in an unacceptable rating on the
appraisal overall. /d.
18a
Appendix D
proposed it communicated to the appellant the performance
standards by which his performance would be measured, notified
him that his performance was unacceptable, and allowed him a
reasonable opportunity to improve his performance.
The appellant claimed initially that his performance
standards were not valid. However, other than contend generally
that they did not conform with the requirements of 5 U.S.C.
§ 4302, he did not articulate any specific challenge to the validity
of the standards used in this case. See appeal file, tabs 1, 8, and 9.
The standard for 3Sa specifies that whenever action items,
suspenses, or other tasks are assigned or generated by the Branch
or lower levels of management, the employee must complete
them in “a timely, accurate and professional manner.” See appeal
file, tab 6(4ppp). The employee can fail on up to five occasions in
a twelve-month period to satisfactorily perform and complete the
assigned taskings within the established time frames and still
meet this standard. Not timely completing or satisfactorily
performing on more than five taskings during a twelve-month
period will result in a failure of this standard. An exceeds rating is
earned if all assigned tasks are completed and satisfactorily
performed within the time frames established for each tasking,
and superior levels of expertise and ingenuity are reflected in
their accomplishment. Jd.
Standard 3Sb covers action items, suspenses, and assigned
tasks generated at the Division and higher level. This standard is
met if the employee fails on no more than two occasions in a
twelve-month period to satisfactorily perform and timely
complete these taskings. The employee fails to meet this standard
if more than two such Division or higher taskings are not
satisfactorily performed or timely completed within the time
19a
Appendix D
frames established for the assignment. Satisfactory and timely
completion of all such taskings, with demonstrated superior
levels of expertise and ingenuity, will net an exceeds for this
standard. Jd.
The third standard relied on by the agency in taking this
action is 4Sa. To meet this standard, the employee must examine/
inspect a representative sampling (one month’s worth) of
assigned sample test reports (for the appellant, the assigned area
was lubricants and greases) from each of eight designated Area
Fuels Laboratories at least once every twelve months and report
these findings to SFTL on a quarterly basis.* Failure to complete
two or more such required inspections or reports will cause a
failure to meet this standard. Completion of more than the
minimum required inspections and missing no testing or
reporting deficiencies will earn an exceeds in standard 4Sa. See
appeal file, tab 6(4ppp).
Considering the professional nature and grade of the
appellant’s position, I find that these performance standards are
sufficiently precise and specific as to offer a general consensus to
their meaning and content, and they are neither absolute nor
vague. See, e.g., Romero v. Equal Employment Opportunity
Commission, 55 M.S.P.R. 527, 534-37 (1992), aff'd, __F.3d__
(Fed. Cir., March 15, 1994) (Table); Donaldson v. Department of
8. The designation for the Directorate of Aerospace Fuels Management is
SF; the Technical Division within that Directorate is known as SFT; within that
Division, the Laboratory Branch is SFTL. Dunn is the Branch Chief for SFTL,
which is located at Kelly AFB, where one of his staff employees is the appellant.
There are 10 laboratories under SFTL, however, no labs are at Kelly, they are at
various locations around the world. Each of the 10 labs is designated with a letter,
Le., the lab at Wright-Patterson AFB, Ohio, is assigned the letter A, and is, therefore,
SFTLA; lab F, or SFTLF, is in Mildenhall, England. See H.Exhs. 5 and 6, in appeal
file, tab 13.
20a
Appendix D
Labor, 27 M.S.P.R. 293 (1985). An agency is permitted to give
content to performance standards by written and oral
instructions, as long as they do not impose a stricter standard of
performance than called for by the critical element. See, e.g.,
Stone v. Department of Health and Human Services, 38 M.S.P.R.
634 (1988); Baker v. Defense Logistics Agency, 25 M.S.P.R. 614
(1985), aff’d, 782 F.2d 1579 (Fed. Cir. 1986). The absence of a
specific time limit for completion of tasks assigned under CE 3E
does not make the standards under 3Sa and 3Sb invalid, since, as
will be seen below, each task or suspense involved in these
allegations of unacceptable performance included an assigned
time frame for completion.
I find that substantial evidence shows that the performance
standards at issue in this appeal permit an accurate evaluation on
the basis of sufficiently objective performance criteria as to meet
the requirements of 5 U.S.C. § 4302(b)(1). See, e.g., Coleman v.
Department of the Army, 27 M.S.P.R. 305, 309 (1985); Shuman v.
Department of the Treasury, 23 M.S.P.R. 620, 626 (1984). I find
that they are valid.
Performance under Critical Element 4E
As previously explained, the performance standards under
this CE are divided into two components. See note 6, supra at 4.
The appellant’s performance plan specifies that for any element
having multiple standards, all of the standards under that element
must be met to have a “meets” rating for that element. See appeal
file, tab 6(4ppp, at p.4). It explains further that failure to meet any
of the individual standards could result in an unsatisfactory
rating. None of the elements in this performance plan have more
than two standards or components. Jd. The appellant did not
challenge this weighting of the standards under the critical
elements.
errr iiiaaidiieataaiiil
2la
Appendix D
The Board has held that a performance standard for a critical
clement may consist of more than one component, and that the
incumbent may be required to perform acceptably with respect to
each of them. Shuman, 23 M.S.P.R. at 627-28. Here, as set forth in
Shuman at 629, the appellant was placed directly on notice in his
performance plan that failure of one of the two standards under
CE 4E would be a failure to meet that CE. Moreover, the second
PIP notice, dated April 16, 1993, clearly advised the appellant
that his performance under CE 4E was unacceptable due strictly
to his failure to meet 4Sa. See appeal file, tab 6(4tt).
I find that a comparison of the component at issue, in relation
to CE 4E overall, reveals that it is the more important of the two
standards. This element addresses the appellant's responsibility
to monitor the quality of the testing and reporting operations as to
lubricants and greases in the various laboratories. Conponent
4Sa sets the standard for test report reviews and the appellant's
requirement to report those findings, while 4Sb sets the standard
for accuracy for these examinations. Thus, 4Sb is dependent on
the examinations and reports of 4Sa taking place before there is
anything to measure. I find that a failure of standard 4Sa properly
warrants a failure of the CE as a whole. See Shuman, 23 M.S.P.R.
at 628-29.
Under 4Sa, the appellant was required to review a one-month
sampling of lubricant and grease test reports from eight of the ten
laboratories,’ at least once every twelve months, and report his
findings to branch management (SFTL) at least quarterly. See
9. The appellant’ s performance standard 4Sa did not require him to monitor
the labs designated as SFTLE and SFTLH, at Vandenberg AFB and Cape
Canaveral, respectively. These two labs were reviewed only by the chemist
assigned the test area for environmental and waste samples. See appeal file, tab
6(4ppp).
22a
Appendix D
appeal file, tab 6(4ppp). In order to meet this standard, the
appellant could fail to perform no more than one required
inspection or management report during the appraisal period. /d.
In the proposal, the appellant was charged with unacceptable
performance in CE 4E because, during the period of October 29,
1992, to October 26, 1993, the date the proposal was issued, he
had not performed any of these test report reviews nor submitted
any of the required quarterly reports to SFTL. /d., tab 6(4f).
Dunn testified that, allowing for permissible failures in the
performance standard, it meant the appellant was required to
perform within a year at least seven inspections of lab reports and
submit at least three quarterly reports to him. He said that the lab
reports are on file at Kelly, and the chemists on his staff only have
to examine and review those test results to prepare their report on
the tests being conducted by the labs. Dunn explained that the
other chemists in SFTL had the same performance requirement,
each was responsible for a different area of sampling, and each of
them completed their inspections and submitted their reports.
Additionally, Dunn said that, due to the agency’s emphasis on
quality control, these inspections and reports were often
discussed at staff meetings as a means to maintain high standards
in the remote labs.
Dunn testified that, to remind the appellant to get these
reviews and reports accomplished, he discussed this matter in
counselling sessions and assigned specific taskings/suspenses
number 105, and later number 109, which were instructions to the
appellant to complete some of the reviews and submit the
quarterly reports by January 15, 1993, and March 30, 1993,
respectively."° See appeal file, tabs 6(4fff and 4jjj). He said that
10. Dunnexplained that each time he gave a work assignment, action item, or
task to an employee he assigned it a suspense number and generally acompletion/
(Cont'd)
PRIOR
23a
Appendix D
the appellant failed to submit any of these reports. Dunn said that
when he counselled the appellant on this matter, the appellant
claimed he lacked proper instructions and guidance to
accomplish these tasks. At Dunn’s request, Richard Redd,
another chemist in SFTL at the time, prepared a check list in
March 1993 on accomplishing these lab report inspections and
standardizing the quarterly reports.'' See H.Exh. 1. Redd testified
that he distzibuted this memorandum to all SFTL chemists,
including the appellant.
Dunn said that, despite Redd’s memorandum, the appellant
still turned in none of the quarterly reports, and he saw no
indication that the appellant was doing any of the lab reviews. In
April 1993, at the same time he issued the second PIP notice to the
appellant, Dunn assigned the appellant two new taskings, number
712, which specified the appellant should perform test report
reviews on laboratories A, B, and F and submit his report to Dunn;
and item 713 which directed the appellant to perform the report
reviews on labs C, D, and G and submit his report to Dunn. See
appeal file, tab 6(4ss). Dunn testified that, when the proposal was
issued, the appellant still had submitted none of these reports to
the Branch and had done none of the test report reviews for any of
(Cont'd)
suspense date. The taskings referred to in the proposal are identified by suspense
numbers, some of which were assigned to the appellant on more than one occasion,
but with new completion dates. See, e.g., appeal file, tabs 6(4f, 4rr, and 4jjj); also
H.Exhs. 4a and 4b. These two taskings, number 105 and 109, are listed only under
the alleged failure to meet CE 4E, although since not completed by the appellant,
they also could have been included in CE. 3E. See discussion of 3E infra.
11. At that time, there were four chemists in SFTL. Each was assigned a
product sampling area to review for their CE 4E. Just as the appellant had lubricant
and grease samples, Redd was responsible for monitoring and reporting on lab tests
for hydraulic fluid and chemical samples. See appeal file, tab 6(4ppp).
24a
Appendix D
the various laboratories, nor did he do any of them before his
removal in February 1994.
The appellant did not refute the testimony by Dunn nor any
of the documentation of record regarding his failure to perform
the requirements of CE 4E. Moreover, the appellant did not
testify nor otherwise assert that he had completed these lab report
reviews or submitted any reports required by 4Sa. I find that
Dunn’s undisputed testimony on this CE was credible, in part
supported by memoranda and letters of record, and establishes
that the appellant failed to perform any of the lab test report
reviews in the area of lubricants and grease, and failed to submit
any of the quarterly reports during the period of October 1992 to
October 1993, as required by performance standard 4Sa.
Accordingly, I find that the agency has shown by substantial
evidence that the appellant’s performance did not meet the
acceptable level of performance established by 4Sa, which is of
such significance in relation to satisfactory performance of the
overall element, that it warrants an unacceptable rating on this
critical element as a whole. See, e.g., Brown v. Veterans
Administration, 44 M.S.P.R. 635 (1990); Sullivan v. Department
of the Navy, 44 M.S.P.R. 646 (1990); Shuman, 23 M.S.P.R. at 629.
The charge of unacceptable performance as to CE 4E is sustained.
Performance under Critical Element 3E
The specific and detailed standards for each of the two
components under CE 3E, which are 3Sa and 3Sb, are described
above. See also note 5, supra at 4. To meet 3Sa the appellant was
required to satisfactorily complete Branch or lower-level
taskings/suspenses assigned to him, with no more than five
failures to satisfactorily complete such assignments during a
25a
Appendix D
twelve-month period. To meet 3Sb, he could fail in no more than
two instances to satisfactorily complete Division or higher
taskings/suspenses in a twelve month period. In the proposal,
Dunn charged the appellant with failing to meet these standards
and cited as examples of his unacceptable performance, ten
Branch taskings and eight Division or higher taskings which he
allegedly failed to satisfactorily complete during the period from
October 29, 1992, to the issuance of the proposal on October 26,
1993. See appeal file, tab 6(4f). These eighteen taskings are listed
in the proposal, and the agency limited its presentation of
evidence on CE 3E to only these instances.
Most of these tasks (thirteen of the eighteen) are related to a
project involving the Directorate’s (SF's) goal of up-grading its
ten laboratories around the world with modern equipment using
the newest technologies, implementing improved testing
methods, and reducing the size of test samples required. The SF
Director, Col. Horn, testified that, in late 1991, the agency made
the decision to aggressively pursue these goals, and he instructed
the Technical Division (SFT) to have the Laboratory Branch
(SFTL) go forward with this “automation and sample
miniaturization” project. Horn said that, within the Branch, the
appellant was assigned as this project manager.
N.A. Makris, the SFT Division Chief, testified that this
project was considered critical because it would keep the
agency’s laboratories competitive with commercial laboratories
performing similar work and would help ensure that this kind of
testing continues to be an organic agency capability rather than
have it become a commercial contract operation. He said that this
project was delegated through SFTL to the appellant from the
beginning. Makris testified that he frequently discussed the
project with the appellant and had asked for monthly reports on
the actions being taken and progress made. See id., tab 6(4ttt).
26a
Appendix D
Makris explained that, by July/August 1992, the appellant
had made very little progress on this project, so he discussed the
matter in detail with the appellant, explaining its importance. He
told the appellant that he expected him to aggressively research
and categorize types of new technologies, including automated
and micro-test equipment currently available, test and analyze it,
determine what new equipment the labs needed, examine ways of
improving test methods and sampling size reductions, make
recommendations, and advise and assist the lab chiefs in getting
the appropriate new equipment and technologies in place. Makris
said that the appellant responded that he now understood the
project and would “get right on it.” See August 19, 1992
memorandum, appeal file, tab 6(4uuu). Makris said that he still
observed the appellant doing very little on the project, he often
made no reports at all and, when he did, he had essentially no
progress to report. Makris felt a GS-13 professional like the
appellant could easily accomplish this project without detailed
instructions; however, he was aware that Dunn provided detailed
instructions to the appellant and even placed him on a PIP, in an
effort to get him moving.”
Dunn testified in detail at the hearing about each of the
tasking examples the agency relied on in taking this action, and
12. Makris testified that, in large part because of the lack of progress and
aggressive pursuit of this automation/sampie miniaturization project, he had to
warn the Branch Chief, Dunn, that his performance on his CE involving supervision
was not acceptable. He even put Dunn on a 60-day PIP in February 1993 in an effort
to get him to properly supervise his staff to ensure that they were getting their
assigned tasks and projects accomplished. Makris said that he felt Dunn responded
accordingly, initiated appropriate supervisory actions, and showed sufficient
improvement in his overall supervisory performance after completion of his PIP so
as not to warrant any further action, as to Dunn. See also stipulations 6 and 7, appeal
file, tab 12.
27a
Appendix D
described what the appellant’s performance deficiencies were
with respect to each of them. He also assisted in the preparation of
a hearing exhibit which is a summary of each of the applicable
tasks, with cross-references to documentation in the file
pertaining to his memoranda, instructions, and/or the appellant’s
responses to the various tasks. See H.Exh. 4a, in appeal file, tab
13. He explained that some of these numbered assignments
involve essentially the same tasks, but where the appellant failed
to complete the task by the suspense date, a new tasking/suspense
was issued to the appellant with a new completion date.”
Dunn testified that the appellant failed in most of these
instances to do anything or make any reports, or in some cases his
responses were untimely and/or unsatisfactory, and this
constituted unacceptable performance in relation to these
specific tasks assigned to him. He said that as to tasking B-25 (the
continuation of the original assignment of the project of
automation of the testing operations/reduction of the testing
sample volume requirements) the appeliant failed to ever do any
meaningful research, cataloging, assessing, or recommendations
of any new equipment, technologies, testing methods or
protocols, nor made any monthly reports of any significant
progress, or to even prepare a plan of action.
13. For example, tasking item B-25 (B for Branch), pertaining to
“automation of testing operations/reduction of sample volume requirements” was a
which required the appellant to make monthly reports on his progress. See proposal,
para. 2a(1), in appeal file, tab 6(4f). In an effort to stimulate action on this project,
separate taskings were subsequently assigned to the appellant on February 22,
1993, focusing the automation (B-343) and miniaturization (D-344) requirements
to the limited area of JP8 fuel testing, with suspense dates of March 16, 1993. /d.,
paras. 2a(3) and (4). Dunn explained that, when no actions or only unsatisfactory
actions were taken on these taskings by the appellant, these tasks were reissued to
the appellant on a later date, with new suspense numbers and/or completion dates.
See id., e.g., paras. 2a(5)-(8).
28a
Appendix D
In an effort to get something accomplished on this project,
Dunn said that, in addition to frequently discussing the
requirements and expectations of the project with the appellant,
he assigned the appellant additional tasks consisting of smaller,
simpler, and more focused segments of the overall project, with
specific suspense deadlines. Assignment B-180 was a tasking to
the appellant to concentrate on coming up with a plan for
modernization of only one of the labs, SFTLD (in Mukilteo,
Washington) as a prototype for the other labs, and continue to
make monthly reports on this progress. Tasking B-343 was for the
appellant to focus on what could be done to update and automate
only the equipment used to test the aviation turbine fuel JP8. D-
344 (D is for Division taskings) was an assignment involving the
reduction or miniaturization of the volume of test samples of JP8
fuel only. See note 13 on p. 14, supra.
Dunn testified that, on several occasions, the appellant was
given a specific assignment to give a briefing on the progress of
his work on certain projects. Task D-703 was to brief Horn and
Makris at a Directorate Management Review meeting on May 19,
1993, on his progress on test automation and sample
miniaturization efforts. See appeal file, tab 6(4LL). Tasking B-
719 was for the appellant to brief Dunn on July 2, 1993, on the
implementation status of proposals for sample turbine fuel
volume reduction; while B-720 was to brief Dunn on July 16,
1993, about progress on the test automation and miniaturization
project. When the appellant failed to brief Dunn on either of these
due dates in July, Dunn reissued these assignments to the
appellant on July 27, 1993. /d., tab 6(4q). Dunn said that he asked
the appellant about these briefings in September, but the
appellant told him he had nothing to report. Dunn testified that,
because the appellant never did either of these briefings, his
actions on B-719 and B-720 were totally unsatisfactory.
29a
Appendix D
Dunn acknowledged that the appellant gave a briefing at the
Directorate Management Review meeting on May 19, 1993, as
assigned in D-703, but he was not present to hear it. Dunn said
that, nevertheless, he received verbal reports from Col. Horn and
Makris that the appellant’s briefing was inadequate, showed no
progress, essentially failed to even address the program goals set
in 1991, and showed that the appellant had not even formulated a
plan of action to accomplish this project. Makris prepared a
written memorandum to Dunn about this briefing, and reported
that, at the briefing, the appellant became very argumentative
with the Director about what the project should accomplish. See
appeal file, tab 6(4kk).
Makris testified that he felt the appellant had actually made
misrepresentations at the May 19, 1993 briefing, when he
claimed the project “was well down the road” when he had
nothing to report about new equipment or actions, subsequent to
the 1991 commencement of this current modernization program.
He said the appellant wanted to argue that the prior acquisition of
equipment that had been done years before showed that he was
working on the automation program. Horn testified that the
appellant’s May 19 briefing was inadequate because he reported
no new information, had done no research on state-of-the-art
equipment or up-dated technologies, and had no plans to move
forward towards completion of their goals.
Dunn testified that he got very little or no reports on the
status and efforts by the appellant and he saw no evidence that the
appellant was taking appropriate actions to accomplish the
various taskings pertaining to the overall laboratories
automation/sample reduction project, the prototyping of
Mukilteo Lab, up-dated automation of JP8 fuel testing, and the
JP8 sample miniaturization project. He said that, in March 1993,
the appellant made some effort to inventory the existing
30a
Appendix D
equipment and test procedures in place at Mukilteo and MacDill
labs and made a brief and inadequate report on this, but he did not
research, list, or make recommendations regarding the newest
available equipment, or changes in technology. See appeal file,
tabs 6(4bbb and 4ddd). Dunn said that, notwithstanding his
numerous explanations and written instruction to the appellant
about what the tasks called for and the resources for information
to accomplish these tasks, most of which was available in
catalogs and other publications at Kelly, or readily available from
the few manufacturers and vendors of this type of equipment, the
appellant never reported on availability, capabilities,
evaluations, or recommendations as to state-of-the-art test
equipment that could potentially be used to modernize and update
the labs. Dunn said that mainly what he got from the appellant
was Many excuses as to why he could not do what Dunn and
Makris expected of him, and why he felt he had done enough in
the past to count as satisfactory completion of these projects. See
appeal file, tabs 6(4zz and 4uu).
Dunn attested that eventually, since he could not get an
adequate report on B-343 and D-344 from the appellant, he
personally prepared a report due to SFT on these projects. See
appeal file, tab 6(4xx). He said that, on April 19, 1993, he gave a
copy of that report to the appellant as a sample of what he
expected from the appellant, the format he should use, and
instructed the appellant to do an independent evaluation of that
report as to Dunn’s methodology and proposals.'* Dunn said that,
14. These tasks were number D-701, regarding the appellant's review and
evaluation of Dunn’ s report as it pertained to turbine test fuel automation, and D-
702, regarding turbine fuel sample miniaturization. See proposed removal notice,
para. 2a(9), appeal file, tab 6(4f). These two tasks were assigned on April 19, 1993,
and were originally due on April 30, 1993. Dunn said that, at the appellant’ s requests
formore time tocomplete these two tasks, he extended the due dates to June 21, then
(Cont'd)
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3la
Appendix D
rather than do his own research and data collection, the appellant
asked Dunn to provide him with the data he had used to make his
report. Dunn explained to the appellant that the idea behind these
tasks was to see if the appellant independently came to the same
assessments and conclusions so as to validate or recommend
revisions to Dunn’s proposals. He said that the appellant
“strongly disagreed” when he refused to turn over his research
data, even though he told the appellant where he had obtained it.
The result was the appellant did nothing on taskings D-701 and
D-702. See appeal file, tabs 6(4pp and 400).
Dunn explained that one task that came from Col. Horn,
which was assigned to the appellant on April 19, 1993, was D-
705. This involved the appellant assisting three of the labs in
expediting the processing of remaining FY93 Defense Fuel
Supply Center MIPR funding.’* Dunn agreed that the appellant
satisfactorily completed this task for two of the labs, but failed to
complete the assignment regarding the MacDill Laboratory. He
said that the MacDill situation involved the lab being unable to
get a piece of equipment with the MIPR funds because the
equipment was not on the Table of Allowances (TA) for MacDill.
Dunn said that, as a GS-13 the appellant knew how to resolve this
problem, and additionally, he repeatedly told the appellant to
(Cont'd)
July 27, and then September 27, 1993, yet the appellant never submitted any report
or evaluation of Dunn’s report.
15. At the hearing, it was explained that MIPR stands for Military
Interdepartmental Purchase Requests. The Defense Fuel Supply Center allocated
certain funding, known as MIPR funds, to the various laboratories to purchase
equipment and furnishings. Task D-705 involved the appellant assisting the labs at
Searsport, Mukilteo, and MacDill in utilizing their remaining MIPR funds for that
fiscal year, and to provide SFT and SFTL with monthly updates on this status.
32a
Appendix D
contact the TA monitor to get the equipment added on that table
so that it could be purchased before the funds expired. He said the
appellant resisted, claiming that it was the lab chief’s
responsibility to do it. Dunn testified that, in June, he ordered the
appellant to take the action to get the equipment on the TA, but he
still would not do it. Subsequently, Dunn called the TA monitor
himself, got the equipment authorized on the TA, and MacDill
soon had the equipment in its inventory. He considered the
appellant’s inaction in the face of specific instructions
demonstrated unsatisfactory completion of this task.
Another requirement that was given to SFTL from the
Division was to perform a review and comparison of two
publications, and report on the differences. This tasking was
assigned to the appellant as D-709 on April 12, 1993. See appeal
file, tabs 6(4w and 4ww). The appellant submitted a response
dated May 26, 1993, id., at tab 6(4ii), but Dunn advised the
appellant that it was unsatisfactory because it did not compare the
two publications, and was little more than a clerical and
administrative review of only one of the documents, correcting
such things as grammar and typographical errors. /d., tab 6(4hh).
Dunn said that he discussed this with the appellant and explained
that he wanted a professional and analytical comparison of the
procedures in the publications, but the appellant claimed that was
what he had already done. See id., tab 6(4gg). In order to get this
task satisfactorily accomplished, Dunn assigned this task to one
of the other chemists, Giles Laney, who completed a review
satisfactory for Dunn’s signature to forward to the Division. See,
tab 6(4ff). Dunn testified that the appellant’s actions and
inactions on this tasking caused his performance on D-709 to be
unsatisfactory.
Dunn testified that, after the Branch lost a GS-6
Management Assistant, he had to reassign some of the work
33a
Appendix D
previously done by that person to the other Branch employees.
On May 6, 1993, all of the chemists were assigned a portion of
that redistributed work, and all except the appellant did theirs
satisfactorily. See id., tab 6(4nn). The appellant was given, as task
B-715, the responsibility of preparing and processing the
requirements relating to lube oil, hydraulic fluid, and base level
fuels correlation programs. Jd.
Dunn said that these reports were initially due from the
appellant on July 23, 1993, for the second calendar quarter. Dunn
acknowledged that, after he granted the time extensions
requested by the appellant, the appellant satisfactorily completed
that portion of B-715 pertaining to lube oil and hydraulic fluid,
but he never did the base level fuels correlation report. Dunn said
that the appellant failed to provide the quarterly reports on the
base level fuels for all of 1993, and this was why the appellant
failed to satisfactorily complete this B-715 tasking.
Dunn explained that another Directorate (LD) at Kelly was
directed by the Environmental Protection Agency to identify all
agency equipment that used ozone depleting chemicals (ODC),
and an employee of LD requested SFTL to determine if certain
testing equipment used in their labs used such substances. See
appeal file, tab 6(4z). Dunn assigned the appellant this task, B-
723. Dunn said that the appellant did not feel he should do this
task, that it was not his job. He even attempted to send this “task”
back to LD without doing anything on it on July 16, 1993, while
acting as the Branch Chief in Dunn’s absence. Dunn said that he
felt this was an easy task for the appellant to accomplish, the
information was needed, and he told the appellant on July 19,
1993, that, notwithstanding the opinion of some of the LD
employees to the contrary, he expected the appellant to complete
the task assigned him to check the specifications on the
34a
Appendix D
equipment involved and report on any ODC used in the labs of
SFTL." id., tab 6(4w). Dunn testified that the appellant never
completed this task.
Horn testified that as the head of the SF Directorate, he had
repeatedly emphasized to all his employees the importance of
what he called “general housekeeping.” He said that he believed
an orderly and uncluttered office and work area was very
important to productive work. Dunn testified that, in keeping
with this command guidance, he gave the appellant a specific task
(B-700) to clean and straighten up his area because he felt the
appellant’s office was very cluttered and messy, and after one of
the other employees left SFTL in about March of 1993, the
appellant’s clutter had expanded into that work area also. Dunn
testified that the appellant had many obsolete periodicals around
and other unneeded papers and materials, which he could have
easily disposed of, and then organized his work area, yet, he never
accomplished this. Dunn admitted that, eventually, the appellant
made a little progress in this area, but it wasn’t long before his
clutter spread again. He felt the appellant never satisfactorily met
this tasking requirement, notwithstanding his many counsellings
with the appellant on this subject and extensions of suspense
dates.
The appellant did not refute most of the testimony regarding
these taskings discussed above. He did repudiate some of the
16. Ancasupervisory employee of LD, Diane Roche, testified that LD had
set up a task force to identify equipment that uses ODC, and she felt the LD
employee who had asked Dunn to have his Branch provide ODC information on
their equipment was “out of line.” She and Dunn both testified about a “heated”
discussion they had about this on July 19, 1993. Roche felt the appellant properly
“returned” this task to LD; however, Dunn contended that it was his responsibility
to assign work to his employees and this task was something he expected the
appellant to complete.
35a
Appendix D
instances of alleged unacceptable performance as to several of
the taskings, but he also corroborated some of the facts relied on
by the agency in supporting its claims of unsatisfactory
performance regarding these tasks. Basically, the appellant
attested, without providing many specifics, that he did whatever
was assigned to him and that, no matter what he did, Dunn and
Makris would not be satisfied with his work.
The appellant acknowledged that he was tasked as the
manager for the project of automation and miniaturization of the
labs using state-of-the-art equipment and new technologies. He
confirmed the availability of resources in catalogs (such as the
“Fisher Catalog”), publications, and from manufacturers and
vendors of equipment, and acknowledged that, to some extent,
these resources aided in assessment of equipment capabilities. He
contended, however, that these catalogs were little more than
“wish lists” and often the equipment would not do what it was
supposed to do. He opined that the technology and hi-tech
equipment that management wanted vas not yet available and,
basically, that the goals set in this area were impossible.
The appellant did not explain how he made this
determination, or why he did not prepare a report to his
supervisors detailing with specific data and assessment results
how he reached this “conclusion”; thus, leaving the impression
that this was little more than his supposition. In his testimony, it
was obvious that the appellant disagreed with the feasibility of
the overall project, and perhaps still did not understand its
objectives. He continued to assert that whenever he reported that
many items of automated testing equipment were already in the
lab system, he was not allowed “credit” for these efforts in
relation to his progress on this automation project.
I find that the appellant’s primary failure regarding the tasks
36a
Appendix D
relating to the automation and miniaturization project, including
the subsequent tasks limiting the focus on only one product or
type of testing, was his failure or refusal to prepare the applicable
reports demonstrating that he had reviewed, categorized, tested,
assessed, and made recommendations based on his findings,
including recommendations of what potential equipment or test
procedures, if any, that might be utilized in the labs to meet the
agency goals set in 1991 to improve automation and reduce test
sample volumes. If his claim that the agency’s goals are
unattainable is correct, and he had actually done the research and
analysis, he should have been able to prepare the necessary
reports properly documenting this assertion with applicable facts
and data.
Regarding task D-701, where Dunn assigned the appellant to
evaluate the report Dunn had prepared for Division on aviation
turbine fuel test automation and miniaturization, see appeal file,
tab 6(4xx), supposedly because the appellant had failed to do his
tasks on this subject, the appellant essentially corroborated
Dunn’s testimony. He said that he asked Dunn for the background
data he had used, but Dunn refused to provide it to him. The
appellant admitted Dunn told him that he expected the appellant
to do his own research to independently validate the proposals
and conclusions Dunn had set forth in that report. The appellant
claimed that he was unable to get the data necessary to verify
Dunn’s figures, but he did not say that he ever provided a report or
written evaluation of Dunn’s report.
The appellant concurred with Dunn and Makris that he was a
GS-13 professional and, therefore, he did not need detailed
instructions when given an assignment, only guidance as to what
his assignment was. He did not, however, adduce any significant
evidence to refute the credible evidence presented by the agency
37a
Appendix D
relating to the particular eighteen taskings discussed above and
relied on by the agency to determine he failed to meet the
performance standards under CE 3E.
I find that the credible testimony from Dunn, Makris, and
Horn provided substantial evidence of performance deficiencies
by the appellant in relation to these specific instances covered by
the removal notice. See Wallace v. Department of the Air Force,
879 F.2d 829, 833 (Fed. Cir. 1989). I find there is sufficient
probative evidence to meet the substantial evidence standard to
establish that the appellant failed to satisfactorily or timely
complete at least ten branch-level tasks assigned to him during
the one year preceding the proposed removal, and this fails to
meet the performance standard 3Sa. I find there is substantial
evidence that the appellant failed to satisfactorily complete eight
division or higher-level taskings during this same year, and this
represents a failure also of standard 3Sb.
From my examination of the evidence overall, as it pertains
to this CE, I find that there is substantial evidence to support a
conclusion that the appellant failed to meet the acceptable level
of performance for both performance components of this
element. See, e.g., Brown, 44 M.S.P.R. 635; Sullivan, 44 M.S.P.R.
646. The charge of unacceptable performance in CE 3E is
sustained.
The appellant failed to establish that the agency committed
harmful error.
The appellant alleged that his removal action should be
reversed because the agency waited too long before issuing its
decision on the proposed removal for unacceptable performance,
letting the maximum period of time permitted by 5 U.S.C.
38a
Appendix D
§ 4303(b) expire.'’ He alleged also that the agency failcd to
comply with its own regulations by failing to consider him for
reassignment or demotion before resorting to removal. Both of
these allegations constitute claims of harmful procedural errors,
and thus are affirmative defenses under 5 U.S.C. § 7701(c) (2)
(A).'* The appellant bears the burden of proof on all affirmative
defenses, by a preponderance of evidence."® See 5 C.FR.
§ 1201.56 (1994). In order to establish harmful error, the
appellant must prove first that, in taking the action on appeal, the
agency committed error in the application of its procedures, and
then, if there was error, that in the absence or cure of that error it
would likely have caused a different outcome in the action. See,
e.g., Coughlan v. Department of the Air Force, 35 M.S.P.R. 230
(1987); Parker, 1 M.S.P.R. at 513; 5 C.F.R. § 1201.56 (1994).
17. Under 5 U.S.C. § 4303(6)(1)(A) an employee who receives a notice of
proposed removal or demotion for unacceptable performance is entitled to “30
days’ advance written notice.” That statute further provides, however, that an
agency, by its own regulations, may extend this 30-day notice period “for not more
than 30 days” Extensions beyond this first 30 day extension can only be done in
accordance with regulations issued by the Office of Personnel Management
(OPM). 5 U.S.C. § 4303(b)(2). The decision on such a proposal “shall be made
within 30 days after the expiration of the notice period.” Id. at § 4303(c)(1).
18. The appellant alleged that his claim that the agency exceeded the notice
requirements set forth in 5 U.S.C. § 4303 is an affirmative defense in violation of the
law, rather than harmful error. This issue has previously been resolved by the Board,
however, and it was determined that a violation of these notice requirements can be
the basis for reversing an agency action only if harmful error is proven. See, ¢.g.,
Faust v. Smithsonian Institution, 29 M.S.P.R. 496, 499 (1985).
19. Apreponderance of the evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to
find that a contested fact is more likely to be true than untrue. See 5 C.F.R.
§ 1201.56(c)(2)(1994).
39a
Appendix D
Under the provision of the agency’s regulations covering
adverse actions based on unacceptable performance, see AFR 40-
452 (July 1, 1984), supervisors are instructed to consider
reassignment or demotion as a possible means of resolving an
unacceptable performance situation. See para. 5-4(1)- (3), appeal
file, tab 1, attach. D. The regulation provides, however, where
attempts to improve an employee’s performance fail, “and
reassignment or demotion is not feasible, there is no justification
for retaining the employee,” and removal under chapter 43 is
authorized. /d.
It is obvious that the regulation does not require demotion or
reassignment in lieu of removal, but only management
consideration of those options as possible alternatives to the
removal. The proposing official, Dunn, and the appellant’s
second-level supervisor, Makris, testified that they looked at the
possibility of a reassignment or demotion before the removal was
initiated, but found these options did not offer a feasible solution.
Dunn said that, during the months before he issued the removal
proposal, he looked at the possibility of reassignment or
demotion of the appellant, but felt he was not qualified to
competently perform any of the chemists positions at Kelly, and
after discussing it with Division Chief Makris, he decided it was
not a feasible alternative to removal.
Makris confirmed that he and Dunn discussed these options,
and he concurred that reassignment and demotion were not
feasible. Makris said that he contacted other organizations on
base trying to locate a vacant position for possible placement of
the appellant, but without success. He said that based on his
knowledge of the appellant’s performance and the needs of his
division, he determined that a demotion would not resolve the
problem of the appellant’s unacceptable performance. He
40a
Appendix D
supported Dunn’s decision to propose removal as the only
feasible alternative in this case.
There is no evidence in this case of the availability of vacant
positions within the SF organization or other organizations at
Kelly. The unrefuted evidence shows that the appellant’s
supervisors complied with the regulatory guidance to consider
demotion and reassignment before proposing an employee’s
removal for unacceptable performance. Moreover, the evidence
shows that, before he proposed the appellant’s removal, Dunn
determined that reassignment or demotion of the appellant
because of his poor performance was not feasible. I find that the
appellant has failed to show the agency committed any
procedural error in relation to its regulatory requirement to
consider these alternatives prior to initiating a removal action.
Concerning the expiration of the notice period, the decision
notice of February 2, 1994, was issued more than ninety days
after the October 26, 1993 proposal was issued. In addition to the
statutory time limits of 5 U.S.C. § 4303, see note 17 on 24, supra,
the applicable agency regulation specifies that the notice period
expires at the end of the thirty-days notice given in the proposal,
“unless extended for no more than 30 additional days by authority
of MAJCOM,” with further extensions granted only by the terms
of a collective bargaining agreement or by OPM. See AFR 40-
452, 5-4, (4)(a) and (b), appeal file, tab 1, attach. D. The agency
stipulated that no one at Kelly AFB requested an extension of
time to this notice period, and no one at MAJCOM requested an
extension of the notice period from OPM.”
20. OPM’ s regulations concerning extensions of the notice period in adverse
action based on unacceptable performance are set forth in 5 C.F.R.
§ 432.107(aX4XiXB) (1993). None of the situations in which those regulations
allow an extension to the notice period are applicable in this case. Jd. Consistent
(Cont'd)
4la
Appendix D
Based on these undisputed facts, it is clear that the
appellant’s advance notice period expired after thirty days.
Without any extension to that notice period, the agency should
have issued its decision on the proposal not later than thirty days
after the time, or sixty days after October 26, 1993, which was
December 25, 1993. Thus, the agency failed to follow the
procedures regarding the notice period as set forth in 5 U.S.C.
§ 4303 and 5 C.FR. § 432.107. Even though the agency
committed error by this delay, it is subject to the harmful error
analysis. Faust, 29 M.S.P.R. at 499.
The deciding official, Col. Horn, testified that, on November
16, 1993, when the appellant submitted his response to Dunn’s
proposal, he requested that Makris not be the deciding official on
his proposed removal, because he believed Makris could not be
objective in his case. See appeal file, tab 6(4d). Since Makris had
been slated to be the deciding official, it was passed on to the next
level of supervision, Horn. Horn said that he travels about 50% of
the time, this was a difficult case and required study of
considerable documentation, it fell around the Christmas season,
and he just was not able to spend the necessary time for him to
make his decision on this case any sooner.
The evidence was undisputed that the appellant remained at
work, as normal, with full benefits, pay, and regular work duties
during the interim. Horn opined that this extra time actually was
to the appellant’s benefit because, had there been evidence
presented to him during the period before he made his decision
that showed the appellant’s performance had improved, he would
not have removed the appellant. But none was presented, and he
(Cont’d)
with 5 U.S.C. §4303(c), OPM’ s regulations also require that the agency shall make
its final decision within 30 days after expiration of the advance notice period. 5
CF.R. §432.107(b) (1993).
42a
Appendix D
observed no improvement in the appellant’s performance. Horn
admitted that when he issued his decision, he was unaware there
were time restrictions for getting the decision notice issued.
The appellant contended that since no decision was issued
within the time established by 5 U.S.C. § 4303, Horn had no
authority to issue a decision and the action should be reversed. He
offered no evidence nor any assertion of how he was harmed by
this agency delay. I find no evidence to support a conclusion that
the agency was likely to have reached a different conclusion,
even if the decision had been issued within the proper time
period. Likewise, there is no evidence to support an inference that
the appellant was harmed in any way or that his rights were
prejudiced by the agency’s delay in issuing the decision notice.
See, e.g.,5C.F.R. § 1201.56(c)(3) (1994). Accordingly, I find that
the appellant has failed to show that the agency error was
harmful.
The appellant has not shown that his removal was based on
discrimination due to his national origin.
The appellant alleged that the agency action was
discriminatory on the basis of national origin — he is Hispanic.
This allegation is also an affirmative defense and, if true, would
constitute a prohibited personnel practice. See 5 U.S.C.
§§ 7701(c)(2)(B), 2302(b)(1). In order to establish a prima facie
case of prohibited discrimination,” the appellant must show that
21. On discrimination claims, the Board follows generally the evidentiary
test described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The appellant must establish a prima facie showing of
discrimination; then the burden shifts to the agency to articulate a legitimate
nondiscriminatory basis for the action; and then, if appropriate, the appellant must
prove that the agency’s articulated reason is merely a pretext for discrimination. See
also St. Mary’s Honor Center v. Hicks, 113 $.Ct.2742(1993).
43a
Appendix D
he is a member of a protected group, which he is; that he was
similarly situated to others who are not members of his protected
group or class; and that he was treated more harshly and
disparately than one or more of those similarly situated
individuals. See, e.g., Combs v. United States Postal Service, 41
M.S.P.R. 304, 308 (1989). He must also establish that the
difference in treatment was based upon an intent to discriminate
because of his national origin. See, e.g., Fenn v. Department of
the Army, 35 M.S.P.R. 362, 366 (1987).
The appellant presented no evidence or argument of
similarly situated employees in non-Hispanic groups that were
treated differently. He testified that Hispanics rarely got any
awards, and notwithstanding that his Branch was the largest in the
Directorate, no awards were given to SFTL employees before
Vasil Laney, a female, came to their Branch. He adduced no
evidence that would support a finding that his removal was in any
way due to the fact that he is Hispanic. I find no evidence in the
record suggesting any disparate treatment in relation to this
removal on the basis of national origin. I find that he has failed to
establish a prima facie case of discrimination.
An appellant’s bare allegation’ of discrimination,
unsupported by probative and credible evidence, does not prove
an affirmative defense. See, e.g., Mascol v. Department of the
Navy, 7 M.S.P.R. 565 (1981); Sorrells v. United States Postal
Service, 6 M.S.P.R. 29 (1981). Accordingly, I find that the
appellant has not established discrimination on the basis of
national origin.
The appellant has not shown that this action was taken against
him in reprisal for any protected activity.
The appellant alleged that he was removed in reprisal for
having previously filed discrimination (EEO) complaints. This is
44a
Appendix D
another affirmative defense which, if true, could constitute a
prohibited personnel practice. See 5 U.S.C. §§ 7701(c)(2)(B),
2302(b)(1) and (9). In order to establish reprisal for engaging ina
protected activity, such as filing an EEO complaint, an appellant
must show (1) that he engaged in the protected activity, (2) that
the deciding official knew about the activity, (3) that the appealed
action could have, under the circumstances, been retaliation, and
(4) that there was a genuine nexus between the retaliation and the
action taken. See Warren v. Department of the Army, 804 F.2d 654
(Fed. Cir. 1986).”
The parties stipulated that the appellant had filed EEO
complaints in the past, and that Horn, Makris, and Dunn were
aware of these complaints. See appeal file, tab 12. The appellant
had apparently filed several complaints over the years against
Dunn and Makris, the latest regarding the unsatisfactory
performance evaluation they issued to him in April 1993. There
was no evidence, however, that any of the appellant’s prior
complaints alleged discrimination by Horn.
These stipulated and undisputed facts establish the first two
parts of the reprisal test. Because the appellant’s filing of these
complaints was protected conduct, and it occurred prior to the
issuance of the notice of proposed removal, it is possible that this
action could have been in reprisal for one or more of his prior
EEO complaints. Nevertheless, to prevail on such an affirmative
defense, the appellant must establish by preponderant evidence
that such unlawful reprisal played a significant or substantial role
22. Although Warren involved acase of alleged reprisal for whistleblowing,
under 5 U.S.C. § 2302(b)(8), the Board has also utilized this analytical test for
claims of reprisal for other protected activities, such as filing a discrimination
complaint, protected by 5 U.S.C. § 2302(b\(9). See, e.g., Rockwell v. Department of
Commerce, 39 M.S.P.R.217,222(1988).
45a
Appendix D
in the decision to remove him. Even then, an agency will prevail
if it shows by preponderant evidence that it would have taken the
same action even if the protected conduct had not occurred. E. 8.
Spadaro v. Department of the Interior, 18 M.S.P.R. 462 (1983);
Gerlach v. Federal Trade Commission, 9 M.S.P.R. 268 (1981).
The appellant offered essentially no evidence to support a
finding of a genuine nexus or causal connection between Horn
and his decision to remove him and his prior EEO complaints. He
testified that, right after Horn came to the Directorate as its
Director in mid-1991, he went to Horn and advised him that there
was a “hostile environment” in the Lab Branch, but he did not
adduce any testimony that would support his claim of a
retaliatory motive by his supervisors because he had previously
filed complaints against them. Diane Roche, the employee of
another directorate who testified about the task involving the
ozone depleting substances, attested that it was her observation
that Dunn did not like the appellant and that the appellant uid not
like Dunn, due to what she characterized as a “personality
conflict.” No testimony from any witnesses nor any other
evidence, however, suggested any basis to infer a retaliatory
motive against the appellant by Dunn or any other supervisor.
There was no evidence or assertion that Horn harbored any
retaliatory motive against the appellant for his complaints against
Dunn and Makris. While the lack of a retaliatory motive by the
deciding official may not be conclusive proof that a removal was
not taken, at least in part, because of protected activity, it strongly
militates against such a finding. See Walsh v. Environmental
Protection Agency, 25 M.S.P.R. 460, 468-69 (1984) (Impure
motive by only a recommending official cannot be presumed to
taint the deciding official’s determination on the merits).
46a
Appendix D
I find that the appellant has failed to provide sufficient
probative and credible evidence to establish a causal connection
or genuine nexus between his protected activity of having filed
prior EEO complaints and the agency’s decision to propose and
effect this removal action. Thus, he has not shown reprisal under
the Warren test. Moreover, I find that, even if an inference is
assumed that the appellant’s prior complaints played some part in
this removal, there is sufficient evidence of unacceptable
performance by the appellant to conclude that the agency would
have taken this removal action absent any retaliatory motive.
Accordingly, I find the appellant has not established the
affirmative defense of reprisai under 5 U.S.C. § 2302(b)(9).
Unacceptable performance in a single critical element supports
a removal action.
The law provides that unacceptable performance by an
employee in even one critical element is sufficient to justify
either a demotion or a removal action. 5 U.S.C. §§ 4301(3),
4303(a). Once the employee’s performance is shown by
substantial evidence to be unacceptable in a CE, the Board has no
authority to review the agency's choice to impose a removal. See,
e.g., Lisiecki v. Federal Home Loan Bank Board, 23 M.S.P.R. 633
(1984), aff'd, 769 F.2d 1558 (Fed. Cir. 1985), cert. denied, 475
U.S. 1108 (1986). I have found substantial evidence that the
appellant's performance was below an acceptable level in two
critical elements. Thus, I find that the agency has shown by the
requisite standard that it properly removed the appellant for
unacceptable performance under 5 U.S.C. § 4303.
47a
Appendix D
DECISION
The agency’s action is AFFIRMED.
FOR THE BOARD s/ William W. Carnes
William W. Carnes
Administrative Judge
NOTICE TOAPPELLANT
This initial decision will become final on JUL 08 1994,
unless a petition for review is filed by that date or the Board
reopens the case on its own motion. This is an important date
because it is the last day on which you can file a petition for
review with the Board. The date on which the initial decision
becomes final also controls when you can file a petition for
review with the Equal Employment Opportunity Commission
(EEOC) or with a federal court. The paragraphs that follow tell
you how and when to file with the Board, the EEOC, or the
federal courts. These instructions are important because if you
wish to file a petition, you must file it within the proper time
period.
BOARD REVIEW
You may request Board review of this initial decision by
filing a petition for review. Your petition for review must state
your objections to the initial decision, supported by references to
applicable laws, regulations, and the record. You must file your
petition with:
The Clerk of the Board
Merit Systems Protection Board
1120 Vermont Avenue, NW., Suite 802
Washington, DC 20419
48a
Appendix D
If you file a petition for review, the Board will obtain the record in
your case from the Administrative Judge and you should not
submit anything to the Board that is already part of the record.
Your petition must be postmarked or hand-delivered no later than
the date this initial decision becomes final. If you fail to provide a
statement with your petition that you have either mailed or hand-
delivered a copy of your petition to the agency, your petition will
be rejected and returned to you.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION REVIEW
If you disagree with the Board's final decision on
discrimination, you may obtain further administrative review by
filing a petition with the EEOC no later than 30 calendar days
after the date this initial decision becomes final. The address of
the EEOC is:
Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
JUDICIAL REVIEW
If you do not want to file a petition with the EEOC, you may
ask for judicial review of both discrimination and
nondiscrimination issues by filing a civil action. If you are
asserting a claim under the Civil Rights Act or under the
Rehabilitation Act, you must file your appeal with the appropriate
United States district court as provided in 42 U.S.C. § 2000e-S. If
you file a civil action with the court, you must name the head of
the agency as the defendant. See 42 U.S.C. § 2000e-16(c). To be
49a
Appendix D
timely, your civil action under the Civil Rights Act, 42 U.S.C.
§ 2000e-16(c) must be filed no later than 30 calendar days after
the date this initial decision becomes final. If you are asserting a
claim under the Age Discrimination in Employment Act, your
claim must be filed with the appropriate United States district
court as provided in 29 U.S.C. § 633a(c). You may have up to 6
years after the right of action first accrues in which to file such a
civil action. See 28 U.S.C. § 2401(a).
If you choose not to contest the Board’s decision on
discrimination, you may ask for judicial review of the
nondiscrimination issues by filing a petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439
You may not file your petition with the court of appeals before
this decision becomes final. To be timely, your petition must be
received by the court of appeals no later than 30 calendar days
after the date this initial decision becomes final.
NOTICE TOAGENCY/INTERVENOR
The agency or intervenor may file a petition for review of
this initial decision in accordance with the Board’s regulations.
CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were) sent by
regular mail, unless otherwise indicated below, this day to each of
the following:
50a
Appendix D
Appellant
Mr. Ismael R. Diaz
7723 Bent Branch
San Antonio, TX 78250-3023
Appellant's Representative(s)
Shelby W. Hollin, Esq.
7710 Stagecoach
San Antonio, TX 78227
Agency's Representative(s)
Bernard Glavy, Esq.
SA-ALC/JAE
204 Lombard Drive
Kelly AFB, TX 78241-5609
Other
Marjorie Marks
U.S. Office of Personnel Management
Employee Relations Division
1900 “E” Street, N.W., Room 7412
Washington, DC 20415
June 3, 1994 s/ Susan M. Vatalaro
(Date) Susan M. Vatalaro
Legal Assistant
S5la
APPENDIX E — STATUTES INVOLVED
CHAPTER 23 — MERIT SYSTEM PRINCIPLES
§ 2301. Merit system principles
(a) This section shall apply to —
(i) an Executive agency; and
(2) the Government Printing Office.
(b) Federal personnel management should be
implemented consistent with the following merit system
principles:
(1) Recruitment should be from qualified individuals
from appropriate sources in an endeavor to achieve a work
force from all segments of society, and selection and
advancement should be determined solely on the basis of
relative ability, knowledge, and skills, after fair and open
competition which assures that all receive equal
opportunity.
(2) All employees and applicants for employment
should receive fair and equitable treatment in all aspects of
personnel management without regard to political
affiliation, race, color, religion, national origin, sex,
marital status, age, or handicapping condition, and with
proper regard for their privacy and constitutional rights.
(3) Equal pay should be provided for work of equal
value, with appropriate consideration of both national and
local rates paid by employers in the private sector, and
appropriate incentives and recognition should be provided
for excellence in performance.
52a
Appendix E
(4) All employees should maintain high standards of
integrity, conduct, and concern for the public interest.
(5) The Federal work force should be used efficiently
and effectively.
(6) Employees should be retained on the basis of the
adequacy of their performance, inadequate performance
should be corrected, and employees should be separated
who cannot or will not improve their performance to meet
required standards.
(7) Employees should be provided effective
education and training in cases in which such education
and training would result in better organizational and
individual performance.
(8) Employees should be —
(A) protected against arbitrary action, personal
favoritism, or coercion for partisan political purposes,
and
(B) prohibited from using their official authority
or influence for the purpose of interfering with or
affecting the result of an election or a nomination for
election.
(9) Employees should be protected against reprisal
for the lawful disclosure of information which the
employees reasonably believe evidences —
(A) a violation of any law, rule, or regulation, or
53a
Appendix E
- (B) mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger
to public health or safety.
(c) In administering the provisions of this chapter —
(1) with respect to any agency (as defined in section
2302(a)(2)(C) of this title), the President shall, pursuant to
the authority otherwise available under this title, take any
action, including the issuance of rules, regulations, or
directives; and
(2) with respect to any entity in the executive branch
which is not such an agency or part of such an agency, the
head of such entity shall, pursuant to authority otherwise
available, take any action, including the issuance of rules,
regulations, or directives;
which is consistent with the provisions of this title and which
the President or the head, as the case may be, determines is
necessary to ensure that personnel management is based on
and embodies the merit system principles.
§ 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, “prohibited personnel
practice” means any action described in subsection (b) of this
section.
(2) For the purpose of this section —
(A) “personnel action” means —
54a
Appendix E
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or
other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) areinstatement;
(vi) arestoration;
(vii) areemployment;
(viii) a performance evaluation under chapter 43
of this title;
(ix) a decision concerning pay, benefits, or
awards concerning education or training if the
education or training may reasonably be expected to
lead to an appointment, promotion, performance
evaluation, or other action described in this
subparagraph; and
(x) any other significant change in duties or
responsibilities which is inconsistent with the
employee’s salary or grade level;
with respect to an employee in, or applicant for, a covered
position in an agency;
(B) “covered position” means any position in the
55a
Appendix E
competitive service, a career appointee position in the
Senior Executive Service, or a position in the excepted
service, but does not include —
(i) a position which is excepted from the
competitive service because of its confidential, policy-
determining, policy-making, or policy-advocating
character; or
(ii) any position excluded from the coverage of
this section by the President based on a determination
by the President that it is necessary and warranted by
conditions of good administration.
(C) “agency” means an Executive agency and the
Government Printing Office, but does not include —
(i) a Government corporation;
(ii) the Federal Bureau of Investigation, the
Central Intelligence Agency, the Defense Intelligence
Agency, the National Security Agency, and, as
determined by the President, any Executive agency or
unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities; or
(iii) the General Accounting Office.
(b) Any employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall
not, with respect to such authority —
wae
56a
Appendix E
(1) discriminate for or against any employee or
applicant for employment —
(A) on the basis of race, color, religion, sex, or
national origin, as prohibited under section 717 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as
prohibited under section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political
affiliation, as prohibited under any law, rule, or
regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any individual
who requests or is under consideration for any personnel
action except as provided under section 3303(f);
(3) coerce the political activity of any person
(including the providing of any political contribution or
service), or take any action against any employee or
applicant for employment as a reprisal for the refusal of
any person to engage in such political activity;
57a
Appendix E
(4) deceive or willfully obstruct any person with
respect to such person’s right to compete for employment;
(5) influence any person to withdraw from
competition for any position for the purpose of improving
or injuring the prospects of any other person for
employment;
(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or applicant for
employment (including defining the scope or manner of
competition or the requirements for any position) for the
purpose of improving or injuring the prospects of any
particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or
advancement, in or to a civilian position any individual
who is a relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the agency in
which such employee is serving as a public official (as
defined in section 3110(a)(2) of this title) or over which
such employee exercises jurisdiction or control as such an
official;
(8) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any employee or
applicant for employment because of —
(A) any disclosure of information by an employee
or applicant which the employee or applicant
reasonably believes evidences —
58a
Appendix E
(i) a violation of any law, rule, or regulation,
or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety,
if such disclosure is not specifically prohibited by law
and if such information is not specifically required by
Executive order to be kept secret in the interest of
national defense of the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or to the
Inspector General of an agency or another employee
designated by the head of the agency to receive such
disclosures, of information which the employee or
applicant reasonably believes evidences —
(i) a violation of any law, rule, or regulation,
or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety;
(9) take or fail to take, or threaten to take or fail to
take, any personnel action against any employee or
applicant for employment because of —
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting
59a
Appendix E
any individual in the exercise of any right referred to in
sub-paragraph (A);
(C) cooperating with or disclosing information to
the Inspector General of an agency, or the Special
Counsel, in accordance with applicable provisions of
law; or
(D) for refusing to obey an order that would
require the individual to violate a law.
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the employee
or applicant or the performance of others; except that
nothing ia this paragraph shall prohibit an agency from
taking into account in determining suitability or fitness
any conviction of the employee or applicant for any crime
under the laws of any State, of the District of Columbia, or
of the United States; or
(11) take or fail to take any other personnel action if
the taking of or failure to take such action violates any law,
rule, or regulation implementing, or directly concerning,
the merit system principles contained in section 2301 of
this title.
This subsection shall not be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.
(c) The head of each agency shall be responsible for the
60a
Appendix E
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management. Any individual to whom the head of an agency
delegates authority for personnel management, or for any
aspect thereof, shall be similarly responsible within the limits
of the delegation.
(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under —
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the basis
of race, color, religion, sex, or national origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(d)), prohibiting discrimination on
the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital status or
political affiliation.
6la
Appendix E
§ 2303. Prohibited personnel practices in the Federal
Bureau of Investigation
(a) Any employee of the Federal Bureau of Investigation
who has authority to take, direct others to take, recommend, or
approve any personne! action, shall not, with respect to such
authority, take or fail to take a personnel action with respect to
any employee of the Bureau as a reprisal for a disclosure of
information by the employee to the Attorney General (or an
employee designated by the Attorney General for such
purpose) which the employee or applicant reasonably believes
evidences —
(1) a violation of any law, rule, or regulation, or
(2) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.
For the purpose of this subsection, “personnel action” means
any action described in clauses (i) through (x) of section
2302(a)(2)(A) of this title with respect to an employee in, or
applicant for, a position in the Bureau (other than a position of
a confidential, policy-determining, policy-making, or policy-
advocating character).
(b) The Attorney General shall prescribe regulations to
ensure that such a personnel action shall not be taken against
an employee of the Bureau as a reprisal for any disclosure of
information described in subsection (a) of this section.
(c) The President shall provide for the enforcement of
this section in a manner consistent with applicable provisions
of sections 1214 and 1221 of this title.
62a
Appendix E
§ 2304. Responsibility of the General Accounting Office
(a) If requested by either House of the Congress (or any
committee thereof), or if considered necessary by the
Comptroller General, the General Accounting Office shall
conduct audits and reviews to assure compliance with the
laws, rules, and regulations governing employment in the
executive branch and in the competitive service and to assess
the effectiveness and soundness of Federal personnel
management.
(b) The General Accounting Office shall prepare and
submit an annuai report to the President and the Congress on
the activities of the Merit Systems Protection Board and the
Office of Personnel Management. The report shall include a
description of —
(1) significant actions taken by the Board to carry out
its functions under this title; and
(2) significant actions of the Office of Personnel
Management, including an analysis of whether or not the
actions of the Office are in accord with merit system
principles and free from prohibited personnel practices.
§ 2305. Coordination with certain other provisions of law
No provision of this chapter, or action taken under this
chapter, shall be construed to impair the authorities and
responsibilities set forth in section 102 of the National
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a
and following), the Act entitled “An Act to provide certain
63a
Appendix E
administrative authorities for the National Security Agency,
and for other purposes”, approved May 29, 1959 (73 Stat. 63;
50 U.S.C. 402 note), and the Act entitled “An Act to amend the
Internal Security Act of 1950”, approved March 26, 1964 (78
Stat. 168; 50 U.S.C. 831-835).
CHAPTER 43 — PERFORMANCE APPRAISAL
SUBCHAPTER I — GENERAL PROVISIONS
§ 4301. Definitions
For the purpose of this subchapter —
(1) “agency” means —
(A) an Executive agency; and
(B) the Government Printing Office;
but does not include —
(i) a Government corporation;
(ii) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Security Agency, or
any Executive agency or unit thereof which is
designated by the President and the principal function
of which is the conduct of foreign intelligence or
counterintelligence activities; or
(iii) the General Accounting Office;
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Appendix E
(2) “employee” means an individual employed in
or under an agency, but does not include —
(A) an employee outside the United States who
is paid in accordance with local native prevailing wage
rates for the area in which employed;
(B) an individual in the Foreign Service of the
United States;
(C) a physician, dentist, nurse, or other
employee in the Veterans Health Administration of the
Department of Veterans Affairs whose pay is fixed
under chapter 73 of title 38;
(D) an administrative law judge appointed
under section 3105 of this title;
(E) an individual in the Senior Executive
Service or the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive
Service;
(F) an individual appointed by the President;
(G) an individual occupying a position not in
the competitive service excluded from coverage of this
subchapter by regulations of the Office of Personnel
Management; or
(H) an individual who (i) is serving in a
position under a temporary appointment for less than
65a
Appendix E
one year, (ii) agrees to serve without a performance
evaluation, and (iii) will not be considered for a
reappointment or for an increase in pay based in whole
or in part on performance; and
(3) “unacceptable performance” means
performance of an employee which fails to meet
established performance standards in one or more critical
elements of such employee’s position.
§ 4302. Establishment of performance appraisal systems
(a) Each agency shall develop one or more performance
appraisal systems which —
(1) provide for periodic appraisals of job
performance of employees;
(2) encourage employee participation in establishing
performance standards; and
(3) use the results of performance appraisals as a
basis for training, rewarding, reassigning, promoting,
reducing in grade, retaining, and removing employees.
(b) Under regulations which the Office of Personnel
Management shall prescribe, each performance appraisal
system shall provide for —
(1) establishing performance standards which will, to
the maximum extent feasible, permit the accurate
evaluation of job performance on the basis of objective
66a
Appendix E
criteria (which may include the extent of courtesy
demonstrated to the public) related to the job in question
for each employee or position under the system;
(2) as soon as practicable, but not later than October
1, 1981, with respect to initial appraisal periods, and
thereafter at the beginning of each following appraisal
period, communicating to each employee the performance
standards and the critical elements of the employee’s
position;
(3) evaluating each employee during the appraisal
period of such standards;
(4) recognizing and rewarding employees whose
performance so warrants;
(5) assisting employees in improving unacceptable
performance; and
(6) reassigning, reducing in grade, or removing
employees who continue to have _ unacceptable
performance but only after an opportunity to demonstrate
acceptable performance.
§ 4303. Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency
may reduce in grade or remove an employee for unacceptable
performance.
(b)(1) Anemployee whose reduction in grade or removal
is proposed under this section is entitled to —
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Appendix E
(A) 30 days’ advance written notice of the proposed
action which identifies —
(i) specific instances of = unacceptat’<
performance by the employee on which the proposed
action is based; and
(ii) the critical elements of the empioyee’s
position involved in each instance of unacceptable
performance;
(B) be represented by an attorney or other
representative;
(C) areasonable time to answer orally and in writing;
and
(D) a written decision which —
(i) in the case of a reduction in grade or removal
under this section, specifies the instances of
unacceptable performance by the employee on which
the reduction in grade or removal is based, and
(ii) unless proposed by the head of the agency, has
been concurred in by an employee who is in a higher
position than the employee who proposed the action.
(2) An agency may, under regulations prescribed by the
head of such agency, extend the notice period under
subsection (b)(1)(A) of this section for not more than 30 days.
An agency may extend the notice period for more than 30 days
only in accordance with regulations issued by the Office of
Personnel Management.
68a
Appendix E
(c) The decision to retain, reduce in grade, or remove an
employee —
(1) shall be made within 30 days after the date of
expiration of the notice period, and
(2) in the case of a reduction in grade or removal, may
be based only on those instances of unacceptable
performance by the employee —
(A) which occurred during the l-year period
ending on the date of the notice under subsection
(b)(1)(A) of this section in connection with the
decision; and
(B) for which the notice and other requirements
of this section are complied with.
(d) If, because of performance improvement by the
employee during the notice period, the employee is not
reduced in grade or removed, and the employee’s performance
continues to be acceptable for 1 year from the date of the
advance written notice provided under subsection (b)(1)(A) of
this section, any entry or other notation of the unacceptable
performance for which the action was proposed under this
section shall be removed from any agency record relating to
the employee.
(e) Any employee who is —
(1) apreference eligible;
(2) in the competitive service; or
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Appendix E
(3) in the excepted service and covered by subchapter
II of chapter 75,
and who has been reduced in grade or removed under this
section is entitled to appeal the action to the Merit Systems
Protection Board under section 7701.
(f) This section does not apply to —
(1) the reduction to the grade previously held of a
supervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this title,
(2) the reduction in grade or removal of an employee
in the competitive service who is serving a probationary or
trial period under an initial appointment or who has not
completed 1 year of current continuous employment under
other than a temporary appointment limited to 1 year or
less, or
(3) the reduction in grade or removal of an employee
in the excepted service who has not completed 1 year of
current continuous employment in the same or similar
positions.
§ 4304. Responsibilities of the Office of Personnel
Management
(a) The Office of Personnel Management shall make
technical assistance available to agencies in the development
of performance appraisal systems.
(b)(1) The Office shall review each performance
70a
Appendix E
appraisal system developed by any agency under this section
and determine whether the performance appraisal system
meets the requirements of this subchapter.
(2) The Comptroller General shall from time to time
review on a selected basis performance appraisal systems
established under this subchapter to determine the extent to
which any such system meets the requirements of this
subchapter and shall periodically report its findings to the
Office and to the Corigress.
(3) If the Office determines that a system does not meet
the requirements of this subchapter (including regulations
prescribed under section 4305), the Office shall direct the
agency to implement an appropriate system or to correct
operations under the system, and any such agency shall take
any action so required.
§ 4305. Regulations
The Office of Persoanel Management may prescribe
regulations to carry out the purpose of this subchapter.
CHAPTER 77 — APPEALS
§ 7701. Appellate procedures
(a) An employee, or applicant for employment, may
submit an appeal to the Merit Systems Protection Board from
any action which is appealable to the Board under any law,
rule, or regulation. An appellant shall have the right —
(1) to a hearing for which a transcript will be kept;
and
T7la
Appendix E
(2) to be represented by an attorney or other
representative.
Appeals shall be processed in accordance with regulations
prescribed by the Board.
(b)(1) The Board may hear any case appealed to it or may
refer the case to an administrative law judge appointed under
section 3105 of this title or other employee of the Board
designated by the Board to hear such cases, except that in any
case involving a removal from the service, the case shall be
heard by the Board, an employee experienced in hearing
appeals, or an administrative law judge. The Board,
administrative law judge, or other employee (as the case may
be) shall make a decision after receipt of the written
representations of the parties to the appeal and after
opportunity for a hearing under subsection (a)(1) of this
section. A copy of the decision shall be furnished to each party
to the appeal and to the Office of Personnel Management.
(2)(A) If an employee or applicant for employment is the
prevailing party in an appeal under this subsection, the
employee or applicant shall be granted the relief provided in
the decision effective upon the making of the decision, and
remaining in effect pending the outcome of any petition for
review under subsection (e), unless —
(i) the deciding official determines that the granting
of such relief is not appropriate; or
(ii)(I) the relief granted in the decision provides that
such employee or applicant shall return or be present at the
place of employment during the period pending the
.
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outcome of any petition for review under subsection (e);
and
(II) the employing agency, subject to the provisions
of subparagraph (B), determines that the return or
presence of such employee or applicant is unduly
disruptive to the work environment.
(B) If an agency makes a determination under
subparagraph (A)(ii)(II) that prevents the return or presence of
an employee at the place of employment, and such employee
shall receive pay, compensation, and all other benefits as
terms and conditions of employment during the period
pending the outcome of any petition for review under
subsection (e).
(C) Nothing in the provisions of this paragraph may be
construed to require any award of back pay or attorney fees be
paid before the decision is final.
|
(3) With respect to an appeal from an adverse action
covered by subchapter V of chapter 75, authority to mitigate
the personnel action involved shall be available, subject to the
same standards as would apply in an appeal involving an
action covered by subchapter II of chapter 75 with respect to
which mitigation authority under this section exists.
(c)(1) Subject to paragraph (2) of this subsection, the
decision of the agency shall be sustained under subsection (b)
only if the agency’s decision —
(A) in the case of an action based on unacceptable
performance described in section 4303 or a removal from
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the Senior Executive Service for failure to be recertified
under section 3393a, is supported by substantial evidence;
or
(B) in any other case, is supported by a
preponderance of the evidence.
(2) Notwithstanding paragraph (1), the agency’s decision
may not be sustained under subsection (b) of this section if the
employee or applicant for employment —
(A) shows harmful error in the application of the
agency’s procedures in arriving at such decision;
(B) shows that the decision was based on any
prohibited personnel practice described in section 2302(b)
of this title; or
(C) shows that the decision was not in accordance
with law.
(d)(1) In any case in which —
(A) the interpretation or application of any civil
service law, rule, or regulation, under the jurisdiction of
the Office of Personnel Management is at issue in any
proceeding under this section; and
(B) the Director of the Office of Personnel
Management is of the opinion that an erroneous decision
would have a substantial impact on any civil service law,
rule, or regulation under the jurisdiction of the Office;
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the Director may as a matter of right intervene or otherwise
participate in that proceeding before the Board. If the Director
exercises his right to participate in a proceeding before the
Board, he shall do so as early in the proceeding as practicable.
Nothing in this title shall be construed to permit the Office to
interfere with the independent decision making of the Merit
Systems Protection Board.
(2) The Board shall promptly notify the Director
whenever the interpretation of any civil service law, rule, or
regulation under the jurisdiction of the Office is at issue in any
proceeding under this section.
(e)(1) Except as provided in section 7702 of this title, any
decision under subsection (b) of this section shall be final
unless —
(A) a party to the appeal or the Director petitions the
Board for review within 30 days after the receipt of the
decision; or
(B) the Board reopens and reconsiders a case on its
own motion.
The Board, for good cause shown, may extend the 30-day
period referred to in subparagraph (A) of this paragraph. One
member of the Board may grant a petition or otherwise direct
that a decision be reviewed by the full Board. The preceding
sentence shall not apply if, by law, a decision of an
administrative law judge is required to be acted upon by the
Board.
(2) The Director may petition the Board for a review
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under paragraph (1) of this subsection only if the Director 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.
(f) The Board, or an administrative aw judge or other
employee of the Board designated to hear a case, may —
(1) consolidate appeals filed by two or more
appellants, or
(2) join two or more appeals filed by the same
appellant and hear and decide them concurrently,
if the deciding official or officials hearing the cases are of the
opinion that the action could result in the appeals’ being
processed more expeditiously and would not adversely affect
any party.
(g)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case, may require
payment by the agency involved of reasonable attorney fees
incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may
be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any case in
which the agency’s action was clearly without merit.
(2) If an employee or applicant for employment is the
prevailing party and the decision is based on a finding of
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discrimination prohibited under section 2302(b)(1) of this
title, the payment of attorney fees shall be in accordance with
the standards prescribed under section 706(k) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(h) The Board may, by regulation, provide for one or
more alternative methods for settling matters subject to the
appellate jurisdiction of the Board which shall be applicable at
the election of an applicant for employment or of an employee
who is not in a unit for which a labor organization is accorded
exclusive recognition, and shall be in lieu of other procedures
provided for under this section. A decision under such a
method shall be final, unless the Board reopens and
reconsiders a case at the request of the Office of Personnel
Management under subsection (e) of this section.
(i)(1) Upon the submission of any appeal to the Board
under this section, the Board, through reference to such
categories of cases, or other means, as it determines
appropriate, shall establish and announce publicly the date by
which it intends to complete action on the matter. Such date
shall assure expeditious consideration of the appeal,
consistent with the interests of fairness and other priorities of
the Board. If the Board fails to complete action on the appeal
by the announced date, and the expected delay will exceed 30
days, the Board shall publicly announce the new date by which
it intends to complete action on the appeal.
(2) Not later than March 1 of each year, the Board shall
submit to the Congress a report describing the number of
appeals submitted to it during the preceding fiscal year, the
number of appeals on which it completed action during that
year, and the number of instances during that year in which it
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failed to conclude a proceeding by the date originally
announced, together with an explanation of the reasons
therefor.
(3) The Board shall by rule indicate any other category of
significant Board action which the Board determines should
be subject to the provisions of this subsection.
(4) It shall be the duty of the Board, an administrative law
judge, or employee designated by the Board to hear any
proceeding under this section to expedite to the extent
practicable that proceeding.
(j) In determining the appealability under this section of
any case
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