Puaca v. Department of Veterans Affairs ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MILOS PUACA,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2014-3173
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0432-12-0595-I-1.
______________________
Decided: June 8, 2015
______________________
MILOS PUACA, Chicago, IL, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JOYCE R.
BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
2 PUACA v. DVA
PER CURIAM
The Department of Veterans Affairs (VA) removed Mi-
los Puaca (Mr. Puaca) from his position as a Veterans
Service Representative with the Veterans Benefit Admin-
istration in Chicago, Illinois as a result of his failure to
maintain a satisfactory performance quality rating. Mr.
Puaca now appeals the decision of the Merit Systems
Protection Board (Board) affirming his removal. We
affirm.
BACKGROUND
Mr. Puaca began his employment as a Veterans Ser-
vice Representative (VSR) in September 2009. A VSR is
tasked with obtaining information from Illinois veterans,
widows, and dependents to substantiate claims for bene-
fits. The VA requires its VSRs to maintain an 85% accu-
racy rate (performance quality rating). The VA calculates
this performance quality rating by reviewing randomly
selected actions completed by the VSR. After an error is
identified, the VSR may rebut the error and, if successful,
that error will be removed from the calculation. The VA
then uses the number of errors to calculate the VSRs
accuracy rate or “performance quality rating.” Mindful of
the learning curve for new VSRs, however, the VA does
not impose this performance standard during a VSR’s
first year of employment. Consistent with this practice,
Mr. Puaca was not subject to the 85% performance quality
rating requirement until October 2010. In addition, the
VA provided Mr. Puaca with extensive training.
After Mr. Puaca became subject to the performance
standards, the VA recognized that Mr. Puaca was strug-
gling to maintain adequate performance quality ratings.
By March 2011, the VA placed Mr. Puaca on a 90-day
performance improvement plan. After this 90-day period,
Mr. Puaca’s performance quality rating had improved
from approximately 40% to nearly 92%. The VA informed
him, however, that he needed to maintain an acceptable
PUACA v. DVA 3
performance quality rating for one year after the date he
was placed on the performance improvement plan. Mr.
Puaca was further informed that failure to maintain this
performance quality rating could result in him being
subject to removal from his position.
Despite additional training, a random sampling of the
claims on which Mr. Puaca had worked revealed a per-
formance quality rating below 85%. Mr. Puaca was given
an opportunity to rebut the errors that the VA cited and
was also notified that these errors could lead to his re-
moval. Mr. Puaca failed to submit any such rebuttal. As
a result, on April 16, 2012, the VA proposed Mr. Puaca’s
removal from his position for failing to meet a minimally
acceptable performance quality rating. On June 3, 2012,
Mr. Puaca was removed from his position.
Mr. Puaca timely appealed and, after a hearing, an
Administrative Judge (AJ) affirmed the removal. There-
after, Mr. Puaca petitioned for review of the AJ’s decision
by the Board. The Board denied the petition for review
and affirmed the AJ’s decision. Mr. Puaca then appealed
to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our review of a Board decision is limited. A decision
of the Board must be affirmed unless it is “(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 (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); Dickey v. Office of Personnel Mgmt., 419 F.3d
1336, 1339 (Fed. Cir. 2005). Under the substantial evi-
dence standard, we will reverse the Board’s decision only
“if it is not supported by such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Haebe v. Dep’t of Justice, 288 F.3d 1288,
1298 (Fed. Cir. 2002) (internal quotation marks omitted).
4 PUACA v. DVA
Mr. Puaca raises several factual arguments. None of
these arguments, however, establish that the Board’s
decision is unsupported by substantial evidence.
Mr. Puaca first argues that the VA failed to show that
he was removed pursuant to an OPM-approved perfor-
mance standard, as required by 5 U.S.C. § 4304. The
Board properly rejected this argument after the VA
submitted a letter from OPM indicating OPM’s approval
of VA’s performance appraisal system. In fact, Mr. Puaca
even previously conceded this point. Mr. Puaca now
argues, for the first time on appeal, that OPM’s approval
of the VA system expired in 1993. Because Mr. Puaca did
not raise this argument before the Board, it is not proper-
ly before us. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d
665, 668 (Fed. Cir. 1998) (“A party in an MSPB proceed-
ing must raise an issue before the administrative judge if
the issue is to be preserved for review in this court.”).
Even if we could consider the argument, however, the
document to which Mr. Puaca cites does not mention the
VA or any revocation of OPM’s approval of the VA’s
performance appraisal system.
Second, Mr. Puaca raises factual issues relating to the
manner in which the VA evaluated his performance. Mr.
Puaca asserts that the VA improperly selected the sam-
ples of his work to review. In addition, he contends that
the VA denied him an opportunity to rebut the purported
errors in his work. The Board rejected each of these
assertions based on testimony presented by the VA. The
Board first credited VA testimony indicating that it
randomly selected the samples using a computerized
tracking system. The Board also credited VA testimony
that Mr. Puaca’s superiors had informed him of the errors
and advised him of his ability to submit rebuttals. See
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1990) (“[A]n evaluation of witness credibil-
ity is within the discretion of the Board and . . . , in gen-
PUACA v. DVA 5
eral, such evaluations are virtually unreviewable on
appeal.” (internal quotation marks omitted)).
Third, Mr. Puaca argues that the VA provided insuffi-
cient training to facilitate improvement of his perfor-
mance. The Board affirmed the AJ’s rejection of this
argument. Specifically, the AJ found that Mr. Puaca’s
successful completion of the performance improvement
plan demonstrated that he was capable of satisfactory
performance. The AJ also rejected this argument in light
of credible testimony from Mr. Puaca’s trainer that he
received at least 272 hours of classroom training in his
first year of employment and an additional ninety-eight
hours of training in his second year.
Fourth, Mr. Puaca contends that the Board erred by
failing to give proper weight to his medical conditions
during the relevant timeframe. The Board reviewed the
record and noted that Mr. Puaca never requested addi-
tional leave while he was recovering from these medical
conditions. The Board also recognized that nothing in the
record indicated that Mr. Puaca’s medical condition
affected his ability to satisfactorily perform his work
duties.
Finally, Mr. Puaca argues that the tenth performance
quality error that the VA identified was erroneously
included in the calculation of his performance quality
rating because it occurred after the expiration of the one-
year period that began at the initiation of the perfor-
mance improvement plan. Neither party disputes that,
without this error, Mr. Puaca’s performance quality
rating would not have fallen below 85%. This argument,
however, appears to be based on a misunderstanding of
the record. The VA placed Mr. Puaca on the 90-day
performance improvement plan on March 21, 2011.
Therefore, the one-year period ended, at the earliest, on
March 20, 2012. According to the record, the disputed
tenth error occurred on March 19, 2012, not on March 21,
6 PUACA v. DVA
2012, as Mr. Puaca now contends. Thus, the Board cor-
rectly determined that this error was properly included in
the VA’s calculation of Mr. Puaca’s performance quality
rating.
In light of the foregoing, the record demonstrates that
the Board fully considered Mr. Puaca’s arguments and
that each of the Board’s determinations is supported by
substantial evidence. We have considered Mr. Puaca’s
remaining arguments and find them without merit.
CONCLUSION
We find no basis on which to reverse the Board’s con-
clusion and therefore affirm the Board’s decision sustain-
ing Mr. Puaca’s removal.
AFFIRMED