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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11367
Non-Argument Calendar
____________________
JOHN ELTON PIPER,
Plaintiff-Appellant,
versus
SECRETARY OF THE NAVY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00570-TKW-MJF
____________________
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2 Opinion of the Court 22-11367
Before JILL PRYOR, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
John Elton Piper, a civilian employee of the Navy, was
placed on a Formal Performance Plan (“FPP”) and later terminated
for unacceptable performance. Piper unsuccessfully pursued an
administrative complaint with the Navy’s Equal Employment
Opportunity (“EEO”) Office. In addition, Piper, proceeding pro se,
sued the Navy in federal court for (1) a violation of the Civil Service
Reform Act of 1978 (“CSRA”), (2) age discrimination, and
(3) retaliation. The district court granted summary judgment to
the Navy on all three claims. On appeal, Piper contends the district
court erred only as to his CSRA claim. After careful review, we
affirm the district court’s order.
I. FACTS
The following undisputed facts are drawn from the evidence
in the summary judgment record.
On April 11, 1999, the Navy hired Piper as a scientist at the
Naval Surface Warfare Center in the Panama City Division. That
office operates under the Naval Sea Systems Command, which is
responsible for (1) procuring, engineering, building, and sustaining
ships, submarines, and related combat systems; and (2) providing
research, development, testing, evaluation, and life cycle
sustainment support within its mission areas.
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22-11367 Opinion of the Court 3
A. The Sonar Beamformer Project
In fiscal year 2013, the Navy commenced a research project
called the Continuous Transmission Frequency Modulated
Synthetic Aperture Sonar Project (the “sonar beamformer
project”). The goal of that project was to write a technical report
and program on a long-range sonar beamformer. The initial
deadline for the project was September 2014.
The Navy assigned a principal investigator to the sonar
beamformer project. That person was responsible for being the
primary contributor and project lead. In March 2014, Piper became
the principal investigator.
Because of the change in personnel and a report that the
project was “promising,” department leadership gave Piper an
extension to September 2015 to complete the sonar beamformer
project. In September 2015, however, Piper had not finished the
project. So Piper asked for another extension, which department
leadership granted. The project’s new deadline was January 2016.
Piper did not complete the project by the new deadline.
In March 2016, during his midyear project review, Piper
reported that the sonar beamformer project was (1) behind
schedule, (2) out of money and (3) overdue.
B. Piper’s FPP
In September 2016, months after the new January 2016
deadline, Piper submitted the sonar beamformer project for final
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4 Opinion of the Court 22-11367
review and approval. 1 Frank Crosby (Piper’s second-level
supervisor) did not sign Piper’s technical report because Crosby
(1) thought Piper’s writing style was unprofessional and (2) found
Piper’s statement—that internet search engine results constituted
proof of scientific validity—to be unprofessional as well.
On January 6, 2017, Crosby placed Piper on a FPP to resolve
Piper’s performance deficiencies. To demonstrate he was able to
perform at an acceptable level, the FPP tasked Piper with
completing two other assignments within sixty days. In the
introduction section, the FPP reviewed the history of Piper’s sonar
beamformer project as follows:
Beginning in FY-13, you were tasked with work on
the Long Range Synthetic Aperture Sonar project.
The goals of the project were to write a technical
report and program a long range sonar beamformer.
However, during periodic task reviews, you reported
the project was behind schedule. The project was
scheduled to end at the end of FY-15. The task
deadline was extended to give you more time to
complete the work; nonetheless, during the FY-16
mid-year task review, you reported that while you
had made progress on the task; you had failed to
complete the task as assigned. Your performance as
such, is troubling and has impacted the mission of the
1The Navy contends that Piper submitted the project for final review and
approval in November 2016, but we use Piper’s more favorable date of
September 2016.
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22-11367 Opinion of the Court 5
Command. This formal PP is designed to help you
resolve your performance deficiencies and
demonstrate you are able to perform at the
Acceptable Level.
(Emphases added.) As explained later, Piper’s appeal focuses on
the two italicized statements in the FPP’s introductory section.
However, the FPP actually tasked Piper with
(1) demonstrating he had “the basic knowledge requirements of
the position,” as described in the enclosures attached to the FPP,
(2) “produc[ing] a program that can be used to remove noise in
three-dimensional images” and (3) “maintain[ing] a work log/diary
(using MS-Word) of [his] daily work activities” that he was to email
to Crosby before their weekly meetings.
The FPP warned that if Piper’s performance was deemed
unacceptable, Crosby would propose a personnel action of
(1) removal from federal service, (2) demotion with a reduction in
pay, (3) demotion without a reduction in pay, or (4) reduction in
pay while remaining in the same band level.
On March 7, 2017, the FPP ended. Crosby found Piper’s
performance on the two new assignments to be unacceptable and
provided a summary and evaluation of the FPP outcome to Piper.
C. Piper’s Termination for Unacceptable Performance
On March 31, 2017, Crosby issued a Notice of Proposed
Removal for Unacceptable Performance (“Notice”). The Notice
placed Piper on administrative leave and proposed Piper’s removal
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“based on [his] Unacceptable Performance during a [FPP]
conducted during the period of 6 January 2017 to 7 March 2017.”
In the Notice’s background section, Crosby acknowledged that
Piper “took over” the project in 2014 after a change in personnel.
Also in the Notice, Crosby cited eight examples of Piper’s
unacceptable performance on the FPP, such as Piper’s failure to
stay focused on the assigned tasks and failure to follow the style
guide that was provided to him.
On May 2, 2017, Kerry Commander (Piper’s third-level
supervisor) sustained Piper’s termination. Commander cited the
Notice and Piper’s performance on the two assignments in the FPP
for his decision to terminate Piper. Piper’s termination took effect
the next day on May 3, 2017.
II. PROCEDURAL HISTORY
A. Administrative Proceedings
Before his termination, Piper started administrative
proceedings, challenging his placement on the FPP. Specifically,
on January 13, 2017, Piper sought informal counseling from the
Navy’s EEO Office, alleging that Crosby placed him on the FPP
because of his age and in retaliation for his earlier EEO complaint
in 2015. 2 Later, on March 10, 2017, Piper submitted a formal
2Piper’s earlier EEO complaint arose when he was not selected for a “high
grade position.” In October 2015, Piper filed a formal complaint with the
Navy’s EEO Office, alleging that he was discriminated against on the basis of
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complaint about the FPP to the Navy’s EEO Office. See
29 C.F.R.
§ 1614.106.
Then, after the Navy terminated Piper in May 2017, Piper
amended his discrimination claim to include an allegation that the
Navy fired him in retaliation for his 2015 EEO complaint. Piper
also requested a hearing. See
29 C.F.R. § 1614.109.
On September 11, 2019, an administrative law judge (“ALJ”)
with the Equal Employment Opportunity Commission (“EEOC”)
granted the Navy’s motion to dismiss in part and concluded she
“lack[ed] jurisdiction over [Piper’s] termination because [Piper]
was a non-probationary employee whose termination is under the
jurisdiction of the Merit Systems Protections Board.” So the ALJ
remanded only the termination claim to the Navy’s EEO Office for
further processing as a mixed case complaint.
On May 3, 2020, the Navy’s EEO Office issued its final
agency decision, which concluded that the Navy had not
“discriminate[d] against [Piper] based on reprisal.” See
29 C.F.R.
§ 1614.302(d)(3). 3
his age. In October 2016, the Navy’s EEO Office found Piper had not suffered
age discrimination.
3 As background to the lawsuit, “[a] mixed case complaint is a complaint of
employment discrimination filed with a federal agency based on race, color,
religion, sex, national origin, age, disability, or genetic information related to
or stemming from an action that can be appealed to the Merit Systems
Protection Board (MSPB).”
29 C.F.R. § 1614.302(a)(1); see also Kloeckner v.
Solis,
568 U.S. 41, 44,
133 S. Ct. 596, 601 (2012). An appealable agency action
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B. District Court Proceedings
In January 2020, Piper, proceeding pro se, filed this action
against the Navy in the district court. Piper’s amended complaint
alleged his termination (1) violated the CSRA,
5 U.S.C. § 4303(a),
(2) was age discrimination in violation of the Age Discrimination
in Employment Act, and (3) was in retaliation for his earlier EEO
complaint.
Following discovery, the parties filed cross motions for
summary judgment. The Navy sought summary judgment on
Piper’s age discrimination and retaliation claims. Piper moved for
includes a removal.
5 U.S.C. § 7512(1); Kloeckner,
568 U.S. at 44 n.1,
133 S.
Ct. at 600 n.1. Piper has a mixed case because his formal complaint alleged his
termination was because of age discrimination and retaliation.
“[T]he CSRA provides diverse procedural routes for an employee’s pursuit of
a mixed case.” Perry v. Merit Sys. Prot. Bd., __ U.S. __,
137 S. Ct. 1975, 1980
(2017). An employee with a mixed case “may either immediately file suit in a
district court or pursue an administrative procedure.” Doyal v. Marsh,
777
F.2d 1526, 1535 (11th Cir. 1985);
5 U.S.C. § 7702(a)(2). Those administrative
procedures are varied and include filing with either (1) the agency or (2) the
MSPB.
5 C.F.R. § 1201.154(a);
29 C.F.R. § 1614.302(b); Kloeckner,
568 U.S. at
44–45;
133 S. Ct. at 601.
Here, Piper first pursued an administrative procedure by filing his complaint
with the Navy’s EEO Office in March 2017. See
5 C.F.R. § 1201.154(a);
29
C.F.R. § 1614.302(b); Kloeckner,
568 U.S. at 45,
133 S. Ct. at 601. Because more
than 120 days passed with no final agency decision, the regulations permitted
Piper to bypass further administrative review and take the matter to
the district court. See
29 C.F.R. §§ 1614.302(d)(1)(i), 1614.310(g); Kloeckner,
568 U.S. at 45,
133 S. Ct. at 601.
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partial summary judgment on his CSRA claim. As pertinent here,
Piper argued that no genuine issue of material fact existed as to his
CSRA claim because “the Navy’s removal of [him] was based on
false statements and was unjustified.”
The magistrate judge issued a report and recommendation
(“R&R”). The R&R recommended that the district court (1) grant
the Navy’s motion for summary judgment on Piper’s age
discrimination and retaliation claims, (2) deny Piper’s motion for
partial summary judgment on his CSRA claim, and (3) grant
summary judgment to the Navy on Piper’s CSRA claim after giving
Piper an opportunity to be heard on his objections to the R&R.
On the CSRA claim, the R&R construed Piper’s amended
complaint to contain a claim that two of Crosby’s statements in the
FPP were false and therefore his termination was the result of
“harmful error in the application of the agency’s procedures” in
violation of the CSRA. The two alleged false statements were
(1) “Beginning in FY-13, [Piper] was tasked to work on
the . . . project” and (2) Piper “failed to complete the task as
assigned.” The magistrate judge concluded that (1) the error in the
first statement—i.e., the reference to FY-13 as opposed to FY-14—
was harmless because it was irrelevant to the Navy’s decision to
remove Piper and it was later cured in the Notice which indicated
Piper “took over” the project in 2014 after a change in personnel
and (2) the second statement was not false.
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Piper objected to the magistrate judge’s R&R. Again, Piper
stressed Crosby’s two statements in the FPP (identified above)
were false.
The district court overruled Piper’s objections and adopted
the magistrate judge’s R&R. The district court entered summary
judgment for the Navy. Piper timely appealed but only as to his
CSRA claim. 4
III. STANDARD OF REVIEW
Ordinarily, we review de novo a district court’s order of
summary judgment and, like the district court, draw all inferences
in the light most favorable to the non-moving party, recognizing
that summary judgment is appropriate only when there are no
genuine issues of material fact. Smith v. Owens,
848 F.3d 975, 978
(11th Cir. 2017). The parties agree that this standard of review
governs Piper’s CSRA claim.
Documents filed by pro se litigants are liberally construed
and are held to less stringent standards than documents drafted by
attorneys. Estelle v. Gamble,
429 U.S. 97, 106,
97 S. Ct. 285, 292
(1976).
4 On appeal, Piper’s brief explicitly states that he does not challenge the district
court’s grant of summary judgment to the Navy on his age discrimination and
retaliation claims. Therefore, any issues on those claims are abandoned. See
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680–81 (11th Cir. 2014).
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IV. DISCUSSION
The CSRA established the procedure by which a federal
employee may seek protection for adverse personnel actions.
Kloeckner,
568 U.S. at 44,
133 S. Ct. at 600. When an agency seeks
to remove an employee for unacceptable performance, as was
done here, the employee is entitled, in relevant part, to 30 days’
advance written notice of the proposed action.
5 U.S.C.
§ 4303(b)(1)(A). That written notice must identify “specific
instances of unacceptable performance by the employee on which
the proposed action is based.”
Id. § 4303(b)(1)(A)(i). 5
On appeal, Piper argues that two of the “specific instances of
unacceptable performance” listed by Crosby in the FPP are
factually inaccurate and amount to harmful error. The two
statements in the FPP are: (1) “Beginning in FY-13, [Piper] w[as]
tasked with work on the . . . project”; and (2) Piper “failed to
complete the task as assigned.”
The problem for Piper is the Notice, not the FPP, controls
his removal. The Notice—not the FPP—is the 30-day written
notice in which the Navy must properly provide “specific instances
5 The Navy argues that the Office of Personnel Management (“OPM”) waived
the requirement in § 4303(b)(1)(A)(i) that an agency identify the “specific
instances of unacceptable performance” when removing an employee. We
disagree. The OPM waived only two portions of § 4303, neither of which
involve § 4303(b)(1)(A)(i)’s requirement when removing an employee. See
62
Fed. Reg. 64066 (Dec. 3, 1997).
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of unacceptable performance” to support the proposed removal of
Piper.
Id.
The Notice, dated March 31, 2017, complied with
§ 4303(b)(1)(A)(i) by listing eight specific instances of Piper’s
unacceptable performance during the FPP period, including
(1) two incidents in which Piper failed to focus on the assigned tasks
in the FPP’s first assignment and (2) six incidents in which Piper
committed errors in the code he was asked to program or
otherwise failed to complete a task for the FPP’s second
assignment.
Importantly, the Notice does not contain either of the
statements found in the FPP that Piper claims are false. Thus, there
is no merit to his argument that these two false statements were
the basis for his removal.
Piper raises only one issue as to any of these eight specifically
identified instances of unacceptable performance. Piper claims that
sixty days to complete the two assignments in the FPP was
“unreasonable and unjust” because, according to the Navy’s
response to an interrogatory, it took three mathematicians 1.5
years to complete those tasks. But the interrogatory response Piper
cites says it took three mathematicians 1.5 years to write “Total
Variation Methods for Three Dimensional Lidar Image
Denoising.” The FPP did not task Piper with writing that
publication. Instead, the FPP tasked Piper with, in relevant part,
“[w]rit[ing] a program that implements the algorithms described in
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3d_tv.PDF [(i.e., the publication)], which is provided with this
plan.”
Indeed, a copy of the publication was attached to the FPP.
The FPP did not require Piper to “reproduce and extend” the
publication’s results, as Piper contends, but merely to use the
algorithms it described. So, contrary to Piper’s argument, the
Navy’s response to the interrogatory does not show that the
sixty-day timeline in the FPP was unreasonable.
For these reasons, the Navy complied with the requirements
of § 4303(a) and (b)(1)(A)(i) in removing Piper, and the district
court properly found that there was no genuine issue of material
fact as to the CSRA claim.
But even assuming the FPP was pertinent to the CSRA
claim, we agree with the district court that Piper failed to show that
the two statements amounted to harmful error. To establish
harmful error sufficient to reverse an agency’s personnel action, an
employee must show that error caused substantial harm or
prejudice to his or her rights.
5 C.F.R. § 1201.4(r). A harmful error
is an “[e]rror by the agency in the application of its procedures that
is likely to have caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the
error.”
Id.
Importantly, while Piper was placed on the FPP because of
his performance deficiencies while working on the sonar
beamformer project, he was not removed because of that. Rather,
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Piper was removed because of his performance deficiencies while
working on the two new assignments in the FPP.
At any rate, it is not likely that either statement “caused the
[Navy] to reach a conclusion different from the one it would have
reached in the absence or cure of the error.” See
id.
As to the first statement—i.e., “Beginning in FY-13, [Piper]
w[as] tasked with work on the . . . project”—the Navy does not
dispute that it is false. The parties agree that Piper started working
on the project in fiscal year 2014, not 2013. However, the record
also shows that, regardless of when Piper started the sonar
beamformer project, Crosby was dissatisfied with Piper’s work for
many reasons: (1) Piper asked for several extensions, (2) Piper
reported that the project was behind schedule, out of money, and
overdue, (3) Piper did not submit the technical report for review
until September 2016 (months after his January 2016 deadline), and
(4) Crosby thought Piper’s report was unprofessional.
As for the second statement—i.e., Piper “failed to complete
the task as assigned”—Piper contends it is false because he finished
the sonar beamformer project when he submitted the technical
report. But the statement in the FPP was that Piper “failed to
complete the task as assigned.” (Emphasis added.) It is undisputed
that Piper did not complete the task “as assigned” by the Navy:
(1) Piper asked for many extensions; (2) during his midyear project
review in fiscal year 2016, Piper reported that the project was
behind schedule, out of money, and overdue; and (3) Piper did not
submit the technical report for review until September 2016
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(months after his January 2016 deadline). Accordingly, the second
statement is not false. 6
For these reasons, the district court did not err in finding
there was no genuine issue of material fact as to whether the Navy
properly terminated Piper’s employment under the CSRA.7
AFFIRMED.
6 Piper implies that he completed the project “as assigned” because the original
proposal for the project estimated that the project would take 3 years (not 2
years) and he completed the project in 2.5 years. Piper also stresses that the
project was funded through the end of fiscal year 2016. But neither of these
points changes the fact that January 2016 was the last deadline Piper was given
to submit the project, and Piper did not do so until September 2016.
7 The Navy argues Piper failed to raise his CSRA claim at the EEO level and
therefore failed to exhaust his administrative remedies on that claim. We need
not decide that exhaustion issue because the district court’s grant of summary
judgment to the Navy on Piper’s CSRA claim is affirmed here in any event.
However, we note that Piper’s March 2017 EEO complaint challenged the
truthfulness of the two statements in the FPP, which is the basis for Piper’s
CSRA claim.
