# Appendix — Ekperigin v. Department of Health & Human Services

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1840%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 907

## Text

Note: This disposition is nonprecedential

United States Court of Appeals for the Federal
Circuit
2009-3099

HENRY EKPERIGIN,

Petitioner.

DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent

Edward H,. Paussman, Passman & Kaplan, P.C

of Washington, DC, argued for petitioner.

L. Misha Preheim, Trial Attonrey, Commercial
Latigation Branc, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With him on the brief were Tony West,
Assistant Attorney General, Jeanne EF. Davidson,
Director, and Director, and ‘Todd M. Hughes, Deputy
Director.

Appealed from: Merit Systems Protection Board

Note: ‘This disposition 1s nonprecedential.

United States Court of Appeals
for the Federal Circuit

2009-3099
HENRY EKPERIGIN, Petitioner,
y
DEPARTMENT OF HEALTH AND HUMAN
SERVICKS, Respondent

Judgment

ON APPEAL fromthe Merit Systems
Protection Board

in CASE NO(S). DC0432080286-I-1

This CAUSE having been heard and considered,
it is

ORDERED and ADJUDGED:

Per Curiam (MAYER, PROST, and
MOORE, Circuit Judges.)

AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT

DATED November 10, 2009 /s/ Jan Horbaly
Jan Horbaly, Clerk

HENRY EKPERIGIN, Appellant, v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, Agency.

DOCKET NUMBER DC-0432-
08-0286-I-1

MERIT SYSTEMS
PROTECTION BOARD

110 M.S.P.R. 306; 2008 MSPB
LEXIS 5887

November 14, 2008
COUNSEL:
{**1]

Debra A. D'Agostino, Esquire, Washington, D.C
for the appellant

Monica Davy, Esquire, Washington, D.C., for the
agency.

OPINION BY: SPENCER

OPINION:
[*306] BEFORE
Neil A. G. MePhie, Chairman
Mary M. Rose, Vice Chairman
FINAL ORDER

The appellant has filed a petition for review in

this case asking us to reconsider the initial decision
issued by the administrative judge. We grant
20

petitions such as this one only when significant new
evidence is presented to us that was not available for
consideration earlier or when the administrative
judge made an error interpreting a law or regulation.
The regulation that establishes this standard of
review is found in Title 5 of the Code of Federal
Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal,
we conclude that there is no new, previously
unavailable, evidence and that the administrative
judge made no error in law or regulation that affects
the outcome. 5 C.F.R. § 1201.115(d). Therefore, we
DENY the petition for review. The initial decision of
the administrative judge is final. This is the Board's
final decision in this matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANT REGARDING
[**2] YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of
this final decision.

Discrimination Claims: Administrative Review

You may request the Equal Employment
Opportunity Commission (EEOC) to review this final
decision on your discrimination claims. See Title 5 of
the United States Code, section 7702(b)(1) (5 U.S.C. §
7702(b)(1)). You must send your request to EEOC at
the following address:

Equal Employment Opportunity
Commission

Office of Federal Operations

P.O. Box 19848

Washington, DC 20036

You should send your request to EEOC no later than
30 calendar days after your receipt of this order. If
you have a representative in this case, and your
representative receives this order before you do, then
you must file with EEOC no later than 30 calendar
days after receipt by your representative. If you
choose to file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final
decision on your discrimination claims, you may file a
civil action against the agency on both your
discrimination claims and your other claims in an
appropriate [**3] United States district court. See 5
U.S.C. § 7703(b)(2). You must file your civil action
with the district court no later than 30 calendar days
after your receipt of this order. If you have a
representative in this case, and your representative
receives this order before you do, then you must file
with the district court no later than 30 calendar days
after receipt by your representative. If you choose to
file, be very careful to file on time. If the action
involves a claim of discrimination based on race,
color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other
security. See 42 U.S.C. § 2000e-5(f); 29 U.S.C. § 794a.

Other Claims: Judicial Review

i
i)

If you do not want to request review of this final
decision concerning your discrimination claims, but
you do want to request review of the Board's decision
without regard to your discrimination claims, you
may request the United States Court of Appeals for
the Federal Circuit to review this final decision on
[**4] the other issues in your appeal. 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 60 calendar days after your receipt of this
order. If you have a representative in this case, and
your representative receives this order before you do,
then you must file with the court no later than 60
calendar days after receipt by your representative. If
you choose to file, be very careful to file on time. The
court has held that normally it does not have the
authority to waive this statutory deadline and that
filings that do not comply with the deadline must be
dismissed. See Pinat v. Office of Personnel
Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right
to appeal this decision to court, you should refer to
the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5
U.S.C. § 7703). You may read this law, as well as

23

review the Board's regulations and other related
material, at [**5] our website, http://www.mspb.gov.
Additional information is available at the court's
website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners
and Appellants," which is contained within the
court's Rules of Practice, and Forms 5, 6, and 11.

FOR THE BOARD:

William D. Spencer
Clerk of the Board

Washington, D.C.

HENRY EKPERIGIN,
Appellant, v. DEPARTMENT
OF HEALTH AND HUMAN
SERVICES, Agency.

DOCKET NUMBER DC-0432-
08-0286-I-1

MERIT SYSTEMS
PROTECTION BOARD

June 5, 2008
COUNSEL:
[*1]

Debra A. D'Agostino, Esquire, Passman & Kaplan,
P.C., Washington, D.C., for the appellant.

Monica Davy, Esquire, Washington, D.C., for the
agency.
ALJ:

BOGLE

ALJ-DECISION:
BEFORE
Elzabeth B. Bogle
Administrative Judge

INITIAL DECISION

On February 4, 2008, the appellant filed an appeal
from a decision of the agency to remove him for

performance-based reasons from the position of

2%

Biologist, GS-0401-13, at the Food and Drug
Administration (FDA). The Board has jurisdiction
over the appeal. 5 U.S.C. § 4303(e). For \the following
reasons, the agency action is AFFIRMED.

Background

The appellant's Biologist position was located in
the Food Safety ‘Team (HIF V-222), Division of Animal
Feeds, Office of Surveillance and Comphance, Center
for Veterinary Medicine. He was supervised during
the relevant period by Karen B. Ekelman, Leader,
Food Safety Team (HFV-222). By memorandum dated
February 16, 2007, Ms. Ekelman informed the
appellant that his performance was unacceptable in
the critical element of individual work, and he would
be placed on a performance improvement plan (PIP)
for 120 days. Appeal File (AF) tab 7, subtab 4G.

By notice dated October 18, 2007, Ms. [*2]
Kkelman proposed the appellant's removal for
unacceptable performance of the critical element. AF
tab 4, subtab 4E. The appellant made written and
oral replies. AF tab 7, subtabs 4C, 4D. On December
20, 2007, Ms. Ekelman issued a decision to remove
the appellant for unacceptable performance. Sharon
Benz, Director, Division of Animal Feeds, concurred
in the decision. AF tab 7, subtab 4B. The appellant
was removed on January 4, 2008. AF tab 7, subtab
4A.

Legal standard

In appeals from performance-based actions taken
under 5 U.S.C. chapter 43, the agency must prove by

substantial evidence that (1) The performance

26

standards were valid; (2) The appellant's
performance in at least one critical element was
deficient as charged; and (3) The appellant was
provided a reasonable opportunity to demonstrate
acceptable performance. 5 U.S.C. §§ 4302-4304; see
Diprizio v. Department of Transportation, 88
M.S.P.R. 73, P 7 (2001).

Substantial evidence is the degree of relevant
evidence that a reasonable person, considering the
record as a whole, might accept as adequate to
support a conclusion, even though other reasonable
persons [*3] might disagree. 5 C.F.R. § 1201.56(c)(1).
To meet its burden, the agency evidence need not be
more persuasive than the evidence presented by the
appellant. See Lovshin v. Department of the Navy,
767 F.2d 826, 844 (Fed.Cir.1985), cert.dented, 475
U.S. 1111, 1068. Ct. 1523, 89 L. Ed. 2d 921 (1986);
Shuman v. Department of the Treasury, 23 M.S.P.R.
620, 624 (1984).

The performance standards were valid

The agency must establish performance standards
that will, to the maximum extent feasible, permit the
accurate evaluation of job performance on the basis of
objective criteria related to the job. 5 U.S.C. §
4302(b)(1). Performance standards must be
reasonable, sufficient in the circumstances to permit
accurate measurement of the employee's
performance, and adequate to inform the employee of
what is necessary to achieve a satisfactory or
acceptable rating. Wilson v. Department of Health
and Human Services, 770 F.2d 1048, 1052
(Fed.Cir.1985). The performance standards can be
"fleshed out" in further detail by informing an

27

employee of the specific areas in which he needs
improvement and of the specific tasks by which he

could [*4] satisfy the agency's concerns. Id. at 1056.
This "fleshing out" is additional support for
determining that the performance standards are
valid as applied to a particular employee because it
suggests that an employee was informed as to what

was necessary to achieve an acceptable rating. Id.

Applying this reasoning, the Board and the Court
of Appeals for the Federal Circuit have approved
standards that might otherwise have failed the
“objective criteria" test because the standards were
applied reasonably and "fleshed out" in the PIP
notice. See Guillebeau v. Department of the Navy, 362
F.3d 1329, 1337 (Fed.Cir.2004); Jackson v.
Department of Veterans Affairs, 97 M.S.P.R. 13, 17-19
(2004); Thomas v. Department of Defense, 95 M.S.P.R.
123, 129 (2003), aff'd, 117 Fed. Appx. 722
(Fed.Cir.2004); Greer v. Department of the Army, 79
M.S.P.R. 477, 483-84 (1998).

The appellant was informed in the PIP notice that
he had failed to meet two performance measures for
critical element one, individual work. His
performance evaluation plan explained that a failure
to meet one or more performance measures [*5]
would result in a failure to meet for the critical
element. AF tab 7, subtab 4H. He was informed that
he must improve his performance to the "acceptable
level" by June 15, 2007. Id.

The performance measures for the critical element
were written at the meets level. The measure for
"manner of performance,” required:

28

Work products are clear and well-
organized.

Communicates clearly and effectively in
writing.

Completes work within established
deadlines.

Works independently with little need for
supervision or help.

Follows management procedures,
directives, regulations, or technical orders.

As evidenced by: work products requiring
minimal revision of technical issues.

As evidenced by: completing at least 80% of
new work assigniments by their due dates.

The measure for "communication" required:

Seeks other opinions, as appropriate, to
produce balanced work product.

Keeps supervisor apprised of changes,
progress, and barriers to progress.

Undertakes difficult assignments with a
professional attitude.

29

Adjusts positively to changes in workload
and priorities.

As evidenced by: keeping the Team Leader
and |*6] Division Director informed
about tissues that arise in your area of
responsibility and expertise.

AF tab 7, subtab 4H.

An agency may give content to performance
standards by informing the employee of specific work
requirements through written instructions,
information concerning deficiencies and methods of
improving performance, memoranda describing
unacceptable performance, and responses to the
employee's questions concerning performance. Neal v.
Defense Logistics Agency, 72 M.S.P.R. 158, 161
(1996). The fact that performance standards may call
for a certain amount of subjective judgment by the

supervisor does not render them invalid especially
where the appellant's position involves the type of
professional judgment which is not susceptible to a

mechanical rating system. /d. at 162.

In the PIP notice, Ms. Ekelman provided the
appellant examples of how his performance was
unacceptable. With respect to "manner of
performance," she stated: (1) During 2006, the
appellant completed nine DAF and two STARS
assignments nl that had been assigned before 1/1/06
(old assignments). However, on January 1, 2007, he
still had three STARS assignments that [*7] were
more than three years overdue, one DAF assignment
that was more than two years overdue, and one DAF

30

assignment that was more than six months overdue
In addition, he had five new DAF assignments that
were overdue by less than three months. (2) During
2006, he completed 15 new DAF assignments, five of
them on time and ten were late. With respect to
"communication," she stated: (1) The appellant failed
to inform her in their meetings of any barriers to
progress in his assignments; (2) Although she
provided him a specific priority order for has
assignments, he did not begin to follow it until late in
the year; (3) When she asked about the status of
pending assignments, he did not respond a majority
of the time. AF tab 7, subtab 4G.

nl DAF is Division of Animal Feeds and STARS
is Submission Tracking and Assignment
system.

Ms. Ekelman advised the appellant that during

the PIP he must:

1. Complete 80% or more of his pending,
not overdue, assignments by their due
dates.

2. Have no assignments that [*8] were
more than three months overdue.

3. Follow the Division's and Team's

established priority order for assignments.

4. Follow her specific instructions about
the priority order for assignments, when
provided.

3]

5. Meet with her weekly to discuss
progress on, problems with, and barriers
to his assignments.

6G. Inform her immediately about
important issues concerning his progress
on, problems with, and barriers to
completion of his assignments by their due

dates.

Id.

In Wilson v. Department of Health and Human
Services, 770 F.2d at 1055, the court explained that
the performance requirements for a professional
position cannot be expected to be set forth in a
"purely mechanical way." Some tasks may only be
rated "with a certain modicum of subjective
judgment." /d. In this case, the appellant's "meets"
standard is similar to the standard upheld by the
court in Wilson (as to appellant Jackson). /d. at 1055-
56. The court found the standard "sufficiently
objective and precise in the sense that most people
will understand what [it] mean[s] and what [it]

require|s]." /d. Moreover, the court observed that the

[*9] agency did not base its action "solely on the
performance standard." The performance standard
"reasonably informed" the employee how he was to
perform, and, when he failed to meet expectations, he
was informed of the specific areas that needed
improvement and the tasks he needed to perform. /d.
at 1056. Similarly, in this case, the agency did not
rely solely on the standard. Ms. Ekelman informed

the appellant in the PIP notice of the reasons she
found the appellant's performance unacceptable and
how his performance needed to improve. In addition,

although the parties dispute how many in-person

meetings were held, it is undisputed that the
appellant's work during the PIP was discussed in
meetings and in e-mails. Finally, I have considered
that the appellant has not shown to have expressed
any confusion over what was required to demonstrate
acceptable performance. For all these reasons, I find
that the appellant's "meets" standard was not
impermissibly subjective. Thus the agency has
established that the performance standard was valid.

In Jackson-Francis v. Office of Government Ethics,
103 M.S.P.R. 183 (2006), the Board held that when
an agency has [*10] adopted a performance
appraisal system that includes a "minimally
successful" rating level, the employee cannot be
required to reach a "fully successful" level of
performance during the PIP to avoid removal. /d. at
186. In this case, the appellant's unacceptable rating
under his 2006 performance evaluation plan led to
the PIP. AF tab 7, subtab 4G. The plan provided for
two rating levels: meets performance measures, and
fails to meet performance measures. AF tab 7, subtab
4H. Because the agency's appraisal system did not
include a "minimally successful” rating level, the
appellant could be required to reach the "meets" level
during the PIP. No basis for changing this conclusion
is provided by the fact that the appellant's 2007
performance plan did provide for four rating levels
including “minimally successful." AF tab 7, subtab 41
The appellant was never rated under this plan and
the PIP clearly communicated to him that he would

be required to reach the "meets" level for critical
element one under the 2006 plan. See Thompson v.,
Department of the Navy, 89 M.S.P.R. 188, 194 (2001)
(an employee's performance standards may not be
substantially changed [*11] at the beginning of a
PIP)

The appellant's performance of a critical element was

deficient

To sustain a chapter 43 removal action, an agency
must show by substantial evidence that the
appellant's performance was unacceptable in at least
one critical element. Luscri v. Department of the
Army, 39 M.S.P.R. 482, 490 (1989), aff'd, 887 F.2d
1094 (Fed.Cir.1989) (Table). Normally, the Board
"should give deference to the judgment by each
agency of the employee's performance in light of the
agency's assessment of its own personnel needs and
standards." Greer v. Department of the Army, 79
M.S.P.R. 477, 485 (1998), citing, Lisiecki v. Merit
Systems Protection Board, 769 F.2d 1558, 1562
(Fed.Cir.1985), cert. denied, 475 U.S. 1108, 1068S. Ct.
1514, 89 L. Ed. 2d 913 (1986)

The agency charged that at the beginning of the
PIP the appellant had no pending (not overdue) DAF
assignments and no pending (not overdue) STARS
assignments that had due dates during the PIP.
During the PIP, he was given five DAF assignments
and two STARS assignments with due dates during
the PIP. He completed one of the STARS assignments
and three of the DAF assignments [*12] by their due
dates or 57% of his pending (not overdue) DAF and
STARS assignments. His performance did not reach

the "meets" level because he did not complete 80% of
34

his pending (not overdue) assignments by their due
date. During the hearing, the appellant stipulated
that these assignments were not completed by the
due date.

The agency also charged that by the end of the
PIP the appellant was required to have no old,
overdue assignments that were more than three
months overdue. At the beginning of the PIP, the
appellant had five overdue DAF and three overdue
STARS assignments. He completed four of the
overdue DAF assignments and none of the overdue
STARS assignments. At the end of the PIP, he still
had one DAF assignment that was more than three
months overdue and three STARS assignments that
were more than three months overdue. ‘I‘herefore, he
did not reach the "meets" level because he had
assignments that were more than three months
overdue at the end of the PIP.

The DAF assignment was DAF06216S07001. Ms.
Ekelman testified that this assignment was not
completed on time. It was reassigned to another
employee and completed by her. An assignment is
complete when it is logged out of the [*13] DAF or
STARS databases. The agency submitted
documentation showing that the assignment was
received on November 24, 2006, and assigned to the
appellant with a due date of January 24, 2007, but it
was completed on October 12, 2007, by another
employee (Li). AF tab 18, exhibit 45. The appellant
testified that it was his understanding the
assignment would be closed out using an e-mail that
he had worked on (AF tab 19, exhibit M). He
admitted on cross-examination, however, that
another employee (Geltman) wrote the email.

35

Because the basis for the appellant's "understanding"
was unclear and because it directly conflicts with Ms.
EKkelman's testimony and the agency's documentation
that the assignment was logged out after it was
completed by another employee, I find the agency

evidence more persuasive.

The STARS assignments were C002245A0000,
C002245G0001, and C002245GO002. All three
assignments concerned a petition (FAP 2245) to
permit the use of formaldehyde in animal feed. Ms.
Ekelman testified that the appellant submitted
several drafts and she provided him extensive
comments. See AF tab 18, exhibits 25, 27, 28, 30 - 35,
37-40. Primarily, she wanted him to either include an
explanation [*14] for his conclusions or provide a
copy of an earlier agency position paper he said he
was relying on. She experienced so much difficulty
getting the appellant to make the changes that she
enlisted the assistance of another employee, Dennis
McCurdy, Senior Regulatory Review Chemist. Mr.
McCurdy testified that he met with Ms. Ekelman and
the appellant and functioned as a "mediator." His
advice to the appellant was to make the changes she
requested. Ms. Ekelman testified that the appellant
finally produced an acceptable draft on June 19, 2007
(AF tab 18 exhibit 39). However it was not logged out
until June 22, 2007, after the completion date of the
PIP. The appellant's testimony was confusing. He did
not deny that the assignment required multiple
drafts or that the final, acceptable dratt was
submitted after the completion date of the PIP. Based
on Ms. Ekelman's testimony, the agency evidence of
the appellant's drafts annotated with Ms. Ekelman's

comments, and the final, acceptable draft that was

36

submitted after the PIP, I find that the appellant
failed to complete these STARS assignments during

the PIP.

Because the appellant has stipulated that he
failed to complete 80% of his pending, [*15] not
overdue, assignments by their due date during the
PIP, and | have found that he had old, overdue
assignments that were pending at the end of the PIP,
I conclude that the agency has shown by substantial
evidence that the appellant's performance of critical
element for individual work was deficient as charged.
In making this finding, Iam mindful that under the
substantial evidence standard the agency evidence
need not be more persuasive than the evidence
presented by the appellant. See Loushin v.
Department of the Navy, 767 F.2d at 844.

The appellant was provided a reasonable opportunity

to improve

‘l’o demonstrate that the employee received a bona
fide opportunity to improve, the agency must prove
that it gave the employce adequate instructions
regarding the manner in which he was expected to
perform the duties of his position prior to holding him
accountable for deficiencies in such performance.
Jones v. National Gallery of Art, 36 M.S.P.R. 602, 604
(1988), aff'd, 864 F.2d 148 (Fed.Cir.1988) (Table),
citing, Chang vu. Department of Education, 30
M.S.P.R. 160, 161 (1986); Shuman v. Department of
the Treasury, 23 M.S.P.R. at 623. [*16] Relevant
factors for determining whether an agency has
afforded an employee a reasonable opportunity to
demonstrate acceptable performance include the
nature of the duties and responsibilities of the

37

employee's position, the performance deficiencies
involved, and the amount of time which is sufficient
to enable the employee to demonstrate acceptable
performance. See Macijauskas v. Department of the
Army, 34 M.S.P.R. 564, 566 (1987), aff'd, 847 F.2d
841 (Ied.Cir.1988) (Table).

The appellant was afforded 120 days to improve
his performance. The PIP notice explained the
standard he must meet to attain a "meets" level of
performance. It also explained the reasons why his
performance was unacceptable and how it must
improve. Ms. Ekelman monitored his performance
and provided him feedback. Based on the information
provided in the PIP notice and the feedback appellant
received from Ms. Kkelman, I find that the appellant
was afforded adequate assistance. See Goodwin v.
Department of the Air Force, 75 M.S.P.R. 204, 207-08
(1997); Gyersvold v. Department of the Treasury, 68
M.S.P.R. 331, 335-36 (1995).

In summary, the appellant [*17] was specifically
informed of the deficiencies in his performance and of
what he must do to improve. The PIP period was an
adequate amount of time for him to demonstrate the
required improvement. The appellant, I conclude,
was provided a reasonable opportunity to
demonstrate performance at the "meets" level. See
Robinson v. Department of the Army, 50 M.S.P.R.
412, 419 (1991).

Discrimination

The appellant alleges that his removal was taken
because of discrimination based on race (Black). The
appellant may prove discrimination by direct or

38

indirect evidence. Direct evidence may be any
statement made by an employer that 1) reflects
directly the alleged discriminatory attitude and 2)
bears directly on the contested employment decision.
See Arredondo v. U.S. Postal Service, 85 M.S.P.R.
113, 120-21 (2000), citing, Dorsey v. Department of
the Air Force, 78 M.S.P.R. 439, 448 (1998). By
indirect evidence, an employee may establish a prima
facie case of prohibited discrimination by introducing
preponderant evidence to show that he is a member
of a protected group, he was similarly situated to an
individual who was not a member of the [*18]
protected group, and he was treated more harshly or
disparately than the individual who was not a
member of his protected group. Buckler v. Federal
Retirement Thrift Investment Board, 73 M.S.P.R. 476,
497 (1997). When the employee has met his burden,
the burden of going forward then shifts to the agency
to articulate a legitimate, nondiscriminatory reason
for its action; and, finally, the employee must show
that the agency's stated reason 1s merely a pretext for
prohibited discrimination. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, 93S. Ct. 1817, 36 L.
Ed. 2d 668 (1973). The appellant offered no direct or
indirect evidence of discrimination.

The appellant testified on cross-examination that
he believed his removal was based on race
discrimination because Ms. Ekelman did not hire
anyone to help him with the backlog but she did hire

employees to work in other areas. The appellant's
testimony is unavailing. He failed to establish that
the other employees who allegedly were being helped
by new hires were similarly situated individuals
outside of his protected group. And he failed to

39

establish that either Ms. Ekelman or Ms. Benz was
responsible for the new hires. Therefore, [*19] the
appellant has not met his burden of proof on the
affirmative defense of discrimination by either direct
or indirect evidence.

Reprisal

In order to establish the affirmative defense of
reprisal, the appellant is required to show that: (1) he
engaged in protected activity; (2) the accused official
knew of the activity; (3) the adverse action under
review could have been retaliation under the
circumstances; and (4) after a careful balancing of the
intensity of the motive to retaliate against the gravity
of the misconduct, a nexus is established between the
motive and the subsequent action. Redschlag v.
Department of the Army, 89 M.S.P.R. 589, 623-24
(2001), review dismissed, 32 Fed. Appx. 543
(Fed.Cir.2002), citing, Warren v. Department of the
Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).

The appellant engaged in protected activity on
October 9, 2007, by filing a discrimination complaint
alleging that the agency was harassing him and
treating him disparately with regard to performance
evaluations and promotions. He also testified that he
was involved in unspecified "diversity initiatives."
The removal action could not have [*20] been taken
in retaliation for the discrimination complaint
because Ms. Ekelman did not learn of the complaint
until November, after she had proposed removal, and
Ms. Benz did not learn of it until he filed his Board
appeal, after she had concurred in the removal
action. Ms. Ekelman testified that she was aware of
the appellant's participation in "diversity initiatives,'

40

however because of the unspecified nature of these
activities, I find that the appellant has not shown she
had any motive to retaliate for them.

DECISION

The agency's action is AFFIRMED.

FOR THE BOARD:
/S/
Elizabeth B. Bogle
Administrative Judge
NOTICE TO APPELLANT

This initial decision will become final on July 10,
2008, 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 1s usually the last day
on which you can file a petition for review with the
Board. However, if you prove that you reccived this
initial decision more than 5 days after the date of
issuance, you may file a petition for review within 30
days after the date you actually receive the initial
decision. You must establish the date on which [*21]
you received it. 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 rile a petition, you must file it within the
proper time period.

BOARD REVIEW

4]

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
1615 M Street, NW.,
Washington, DC 20419

A petition for review may be filed by mail, facsimile
(fax), personal or commercial] delivery, or electronic
filing. A petition for review submitted by electronic
filing must comply with the requirements of 5 C.F.R.
§ 1201.14, and may only be accomplished at the
Board's e-Appeal website (https://e-appeal.mspb.gov).

If you file a petition for review, the Board [*22]
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 filed with the Clerk of
the Board no later than the date this initial decision
becomes final, or if this initial decision is received by
you more than 5 days after the date of issuance, 30
days after the date you actually receive the initial
decision. If you claim that you received this decision
more than 5 days after its issuance, you have the
burden to prove to the Board the date of receipt. You
may meet your burden by filing evidence and
argument, sworn or under penalty of perjury (see 5

4?

y a

C.F.R. Part 1201, Appendix 4) to support your claim.
The date of filing by mail is determined by the
postmark date. The date of filing by fax or e-mail is
the date of submission. The date of filing by personal
delivery is the date on which the Board receives the
document. The date of filing by commercial delivery
is the date the document was delivered to the
commercial delivery service. Your petition may be
rejected and returned to you if you fail to provide a

statement of how you served your petition on the
other party. If [*23] the petition is filed by e-mail,
and the other party has elected e-Filing, including

the party in the address portion of the e-mail
constitutes a certificate of service.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION REVIEW

If you disagree with the Beard's final decision on
discrimination, you may obtain further
administrative review by filing a petition with the
KEOC no later than 30 calendar days after the date
this initial decision becomes final. The address of the

KEOC 1s:
Office of Federal Operations

Equal Employment Opportunity
Commission

P.O. Box 19848
Washington, D.C. 20036
JUDICIAL REVIEW

If you do not want to file a petition with the
KEOC, you may ask for judicial review of both
discrimination and nondiscrimination issues by filing

43

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-
5. 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 timely, your civil action
[*24] 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). In some, but
not all districts you may have up to 6 years 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 before
this decision becomes final. To be timely, your
petition must be received by the court no later than
60 calendar days after the date this initial decision
becomes final.

If you need further information about your right to appeal
this decision to court, you should refer to the federal law that

44

gives you this right. It is found in Title [*25] 5 of the United
States Code, section 7703 (S U.S.C. § 7703). You may read
this law, as well as revicw the Board's regulations and other
related material, at our website, http://www.mspb.gov
Additional information 1s available at the court's website,
www.cafc.uscourts.gov. Of particular relevance ts the court's
"Guide for Pro Se Petitioners and Appellants,” which ts
contained within the court's Rules of Practice, and Forms 5, 6,
and L1.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of
this initial deciston in accordance with the Board's

regulations.

5 USCS § 4301 (2009)
§ 4301. Definitions

For the purpose of this subchapter [5 USCS §§ 4301
et seq.]|--
(1) "agency" means
(A) an Executive agency; and
(B) the Government Printing Office;
but does not include

(1) a Government corporation;

(ii) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, o1
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 [Government
Accountability Office];

(2) "employee" means an individual employed 1n o1
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;

(CC) a physician, dentist, nurse, or other employee
in the Veterans Health Administration of the
Department of Veterans Affairs whose pay 1s fixed
under chapter 73 [74] of title 38;

(D) an administrative law judge appointed under
section 3105 of this title [5 USCS § 3105];

(E) an individual in the Senior Executive Service
or the Federal Bureau of Investigation and Drug

46

Knforcement Administration Senior Executive
service;

(I*) an individual appointed by the President;

(4) an individual occupying a position not in the
competitive service excluded from coverage of this
subchapter [5 USCS §§ 4301 et seq.] by regulations of
the Office of Personnel Management; or

(H) an individual who (1) 1s serving 1n a position
under a temporary appointment for less than one
year, (11) agrees to serve without a performance
evaluation, and (111) 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

5 USCS § 4302 (2009)

§ 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 Personne]
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
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
tollowing 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 on 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

(c) In accordance with regulations which the Office
shall prescribe, the head of an agency may
administer and maintain a performance appraisal
system electronically.

48

5 USCS § 4303 (2009)
§ 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) An employee whose reduction in grade or

removal is proposed under this section is entitled to--
(A) 30 days' advance written notice of the

proposed action which identifies

(1) specific instances of unacceptable
performance by the employee on which the proposed
action is based; and

(ii) the critical elements of the employee's
position involved in each instance of unacceptable
performance;

(B) be represented by an attorney or other
representative;

(C) a reasonable 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

49

regulations issued by the Office of Personnel
Management.

(c) The decision to retain, reduce in grade, or remove
an employee--

(1) shall be made within 30 days alter 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 1-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) [f, 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.

(ce) Any employee who is

(1) a preference eligible;

(2) in the competitive service; or

(3) in the excepted service and covered by
subchapter II of chapter 75 [5 USCS 8§§ 7511 et seq.},

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
(5 USCS § 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 332 1(a)(2) of this
title [5 USCS § 3321(a)(2)],

(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.

5 USCS § 7703 (2009)

§ 7703. Judicial review of decisions of the Merit
Systems Protection Board

(a)

(1) Any employee or applicant for employment
adversely affected or aggrieved by a final order or
decision of the Merit Systems Protection Board may
obtain judicial review of the order or decision.

(2) The Board shall be named respondent in any
proceeding brought pursuant to this subsection,
unless the employee or applicant for employment

S]

seeks review of a final order or decision on the merits
on the underlying personnel action or on a request for
attorney fees, in which case the agency responsible
for taking the personnel action shall be the

respondent.

(b) (1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United
States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any
petition for review must be filed within 60 days after
the date the petitioner received notice of the final
order or decision of the Board.

(2) Cases of discrimination subject to the provisions
of section 7702 of this title [5 USCS § 7702} shall be
filed under section 717(c) of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
633a(c)), and section 16(b) of the Fair Labor
Standards Act of 1938, as amended (29 U.S.C.
216(b)), as applicable. Notwithstanding any other
provision of law, any such case filed under any such
section must be filed within 30 days after the date
the individual filing the case received notice of the
judicially reviewable action under such section 7702.

(c) In any case filed in the Court of Appeals for the
Federal Circuit, the court shall review the record and
hold unlawful and set aside any agency action,
findings, or conclusions found to be--

(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;

(2) obtained without procedures required by law,
rule, or regulation having been followed; or

52

(3) unsupported by substantial evidence;

except that in the case of discrimination brought
under any section is referred to in subsection (b)(2) of
this section, the employee or applicant shal! have the
right to have the facts subject to trial de novo by the
reviewing court.

(d) The Director of the Office of Personnel
Management may obtain review of any final order or
decision of the Board by filing, within 60 days after
the date the Director received notice of the final order
or decision of the Board, a petition for judicial review
in the United States Court of Appeals for the Federal
Circuit 1f the Director determines, in his discretion,
that the Board erred in interpreting a civil service
law, rule, or regulation affecting personnel
management and that the Board's decision will have
a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director
may not petition for review of a Board decision under
this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition in the named
respondent, the Board and all other parties to the
proceedings before the Board shall have the nght to
appear in the proceeding before the Court of Appeals.
The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.

28 USCS § 1254 (2009)

§ 1254. Courts of appeals; certiorari; certified
questions

Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of
any party to any civil or criminal case, before or after
rendition of judgment or decree;

(2) By certification at any time by a court of appeals
of any question of law in any civil or criminal case as
to which instructions are desired, and upon such
certification the Supreme Court may give binding
instructions or require the entire record to be sent up
for decision of the entire matter in controversy.

54

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1840%3A2. Public record. Not legal advice.