Janet L. Wallace v. Department of the Air Force ( 1989 )

FRIEDMAN, Circuit Judge.

This is a petition to review a decision of the Merit Systems Protection Board (Board) upholding the removal of the petitioner for unacceptable performance. Wallace v. Department of Air Force, 36 M.S.P.R. 573 (1988). We affirm.

I

The petitioner, Ms. Wallace, served with the Air Force as a clerk-typist and clerk from January 1977 until her removal in April 1983. During her last two years there, Ms. Wallace received overall evaluation ratings of “unacceptable” in her first and second performance appraisals and was denied two consecutive “within-grade increases.” The first performance appraisal rated Ms. Wallace as not meeting the standard in three critical job performance elements: office administration, final product implementation, and contacts and communications. The performance rating noted the following comment pertaining to the office administration element: “Workload flow is unsatisfactory since both high and lower priority work must frequently be given to another secretary to insure established deadlines are met.”

At counseling sessions held after the first appraisal, her supervisor, Mr. Ellis, informed Ms. Wallace of the need to improve her typing, proofreading, attention to detail and office procedure, and filing. Mr. Ellis assigned his lead secretary, Ms. Capps, to review Ms. Wallace’s work, to point out errors, and otherwise to assist Ms. Wallace in improving her performance.

The second performance appraisal rated Ms. Wallace’s performance as unacceptable in the critical elements of office administration and final product implementation. The rating listed the following under “Office Administration:” “(b) Backlog of unfiled material is high and the condition of the assigned files was not acceptable, requiring the senior secretary to redo them, (c) Workload does not flow smoothly and sus-penses have been missed. Supervisory assistance is required frequently to set priorities due to the high typing backlog.”

The Air Force subsequently removed Ms. Wallace for “failure to adequately meet the standards for [two] critical elements [office administration and final product implementation]” of her job.

Ms. Wallace filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination in her removal. After a hearing, the EEOC Complaints Examiner recommended a finding of no discrimination, a recommendation which the Air Force adopted.

Ms. Wallace then appealed her removal to the Board. After a hearing, at which the transcript from the EEOC proceeding was incorporated into the record, the administrative judge sustained the removal on the basis of Ms. Wallace’s unacceptable performance of the critical element “Final Product Implementation,” as evidenced by her typing and formatting errors. .

The Board vacated the initial decision and remanded the case for further proceedings, Wallace v. Department of the Air Force, 34 M.S.P.R. 605 (1987), because the administrative judge had improperly relied on carbon copies, rather than final work-product, in making his findings regarding typing errors.

On remand, the administrative judge again sustained the removal, this time on the ground that Ms. Wallace’s unacceptable performance in two components of the critical element “Office Administration” — untimely filing of documents and unacceptable work flow — was supported by substantial evidence. The Board denied review of that decision.

II

Under 5 U.S.C. § 4303(a) (1982), an agency may remove an employee for “unacceptable performance,” which 5 U.S.C. § 4301(3) defines as performance that “fails to meet established performance standards in one or more critical elements of such employee’s position.” Section 4302(b)(1) requires the establishment of “performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria ... related to the job in question for each employee or position....”

A. Ms. Wallace first contends that the performance standards upon which she was evaluated and removed are vague, subjective, and nonspecific, and therefore her removal was invalid under 5 U.S.C. § 4302 and this court’s decision in Wilson v. Department of Health and Human Servs., 770 F.2d 1048 (Fed.Cir.1985). The Air Force Performance Standards with regard to these two components are as follows:

(b) Backlog of unfiled material is minimal. Formal inspections reveal few minor and no major deficiencies.

(c) Workload flows smoothly with little interruption, following established priorities. Problems of priority conflict are promptly referred to the supervisor for resolution.

Because Ms. Wallace failed properly to raise this issue before the Board, it is not open to her on this appeal, and we do not consider it. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576, 1577 (Fed.Cir.1985); Thomas v. General Servs. Admin., 794 F.2d 661, 666 (Fed.Cir.1986).

Ordinarily, appellate courts refuse to consider issues not raised before an administrative agency. Cecil v. Department of Transp., 767 F.2d 892, 894 (Fed.Cir.1985); Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1101 (Fed.Cir.1985); Haynes v. United States, 190 Ct.Cl. 9, 418 F.2d 1380, 1383 (1969). “[O]bjections to the proceedings of an administrative agency [must] be made while it has an opportunity for correction in order to raise issues reviewable by the courts.” United States v. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952); cf. Pine v. United States, 178 Ct.Cl. 146, 371 F.2d 466, 468 (1967). A corollary is that the issue must be raised with sufficient specificity and clarity that the tribunal is aware that it must decide the issue, and in sufficient time that the agency can do so.

The ways in which Ms. Wallace claims she raised the issue did not alert the administrative judge that the issue was before him. Ms. Wallace’s only explicit challenge to the validity of the performance standards was in her petition to the Board to review the second decision of the administrative judge, which the Board denied. That attempt to raise the issue came too late, since the administrative judge had no opportunity to receive evidence on the issue or to decide it. Meglio, supra (“Where petitioner fails to frame an issue before the presiding official and belatedly attempts to raise that same issue before the full board, and the board properly denies review of the initial decision, petitioner will not be heard for the first time on that issue in the Federal Circuit” [footnote omitted]). The Board cannot be faulted for refusing to consider the issue.

The other instances in which Ms. Wallace alleges she raised the issue either were not sufficiently explicit or were not before the Board.

Ms. Wallace points to three statements made by her union representative. The first stated that “5 U.S.C. 4302(b)(1) call[s] for job criteria to be ‘objective,’ not punitive.” That statement was made not before the Board but to the Air Force in response to its notice of proposed removal. The present case is unlike the Board’s Call-away decision upon which the dissent relies. Callaway held that because the employee had alleged in her response to the agency’s notice of proposed removal that her job performance standards were invalid, the presiding official had not improperly expanded the proceedings by considering that issue. In this case, unlike Callaway, Ms. Wallace did not adequately raise the performance standards issue before the administrative judge, who did not consider it.

The second statement was that “[i]t is also contained in Section 4302 ... that the employee has a right to an objective appraisal of his or her performance....” That was an isolated statement made during the EEOC hearing. The administrative judge could not fairly be expected to comb the lengthy transcript of the EEOC proceeding in order to determine whether Ms. Wallace had raised the issue. The third statement, made at the initial hearing before the administrative judge, addressed only the objectivity of the performance standards with regard to Ms. Wallace’s typing, an issue not before us on this appeal.

Finally, Ms. Wallace refers to her Statement of Facts and Issues and Witness List that she submitted to the administrative judge. The only issue she set forth was:

Did the Agency comply with the requirements of law and regulations, specifically, 5 U.S.C. 4302, and AFR 40-452, and with case law and precedents, in their removal of Ms. Janet L. Wallace, from her position with the Air Force effective April 15,1983, or was it a personal action based on some motivation of her supervisor Mr. Richard Ellis?

Neither this statement nor the three paragraphs that followed adequately alerted the administrative judge that Ms. Wallace was challenging the validity of the performance standards for her job. The mere citation of the statute and regulations did not serve that function. The only issue this statement appeared to raise was whether Ms. Wallace was removed for unacceptable performance or because of some personal reason of her supervisor.

There have been occasional instances in which this court or its predecessor has considered issues not properly raised before an agency or remanded the case to the agency to consider them. Beard v. General Servs. Admin., 801 F.2d 1318, 1321 (Fed.Cir.1986); Fucik v. United States, 228 Ct.Cl. 379, 655 F.2d 1089, 1094-95 (1981); American Elec. Contracting Corp. v. United States, 217 Ct.Cl. 338, 579 F.2d 602, 610 (1978). We discern nothing in this case, however, that induces us to depart from the general principle and determine an issue that was not properly raised before or decided by the Board. Cf. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 26:7, at 444 (2d ed. 1983).

B. Ms. Wallace also challenges the sufficiency of the evidence supporting the administrative judge’s finding that her performance in two of the components of the critical elements “Office Administration” was unacceptable. She contends that the administrative judge’s findings on the “work flow” component of the office administration element were based solely upon “general testimonial evidence” that did not refer to any specific instances of unacceptable performance.

We know of no rule that precludes a finding of unacceptable performance based on general testimony. The issue before us is whether the findings of unacceptable performance are supported by substantial evidence, not whether that evidence related to specific instances of such performance.

Those findings are supported by substantial evidence, which includes evidence of specific instances of defective performance.

The evidence with regard to the work flow component included the sample documents submitted by the Air Force. The administrative judge stated that “[s]uch examples, albeit limited, support the agency’s contention that because the appellant’s work required an excessive amount of review and correction the work flow was not smooth.” In addition, Ms. Capps, whose testimony the administrative judge credited, stated that Ms. Wallace was unable to keep her work flowing smoothly, that “half of her work didn’t get done,” and that “it took Ms. Wallace a long time to do anything.” Moreover, Mr. Lymbumer, a member of the office where Ms. Wallace worked, stated in testimony taken at the EEOC hearing (which was introduced at the Board hearing) that “there were a lot of things (assigned to Ms. Wallace) that didn’t get done when [he] wanted them,” that “sometimes” work product was “[n]ot done correctly the first time or second [time],” and that “close to one hundred percent” of complex documents initially done by Ms. Wallace were incorrect or had to be redone. The administrative judge’s finding on the work flow component was supported by substantial evidence.

Since unacceptable performance in .only a single component of a critical job element may be sufficient to justify removal for unacceptable performance, Shuman v. Department of Treasury, 23 M.S.P.R. 620, 628 (1984), that finding alone would sustain Ms. Wallace’s removal. The finding with regard to the filing backlog component, however, also is supported by substantial evidence.

Mr. Ellis testified that Ms. Wallace had a backlog of unfiled materials during the November 23, 1982 rating period, that on one occasion the filing backlog “was something like a foot high,” and that Ms. Wallace had allowed a particular backlog to continue six or seven weeks after she had been told to reduce it. Ms. Capps testified that Ms. Wallace did not keep current with her filing, that “after Ms. Wallace left” there was “a whole bunch that hadn’t been filed at all,” and that “[s]ome of it was a year old.”

The administrative judge correctly rejected Ms. Wallace’s contention that her removal was defective because the Air Force failed to prove the element of the filing backlog standard that required that “[f]or-mal inspections reveal few minor and no major deficiencies.” As the administrative judge pointed out, “this ‘formal inspection’ portion of the component is not material to an evaluation of the appellant’s work under the component as a whole because, as shown below, the appellant’s filing work was periodically reviewed and found deficient.”

C. Finally, Ms. Wallace contends that 5 U.S.C. § 4303(b)(1) (1982) provides that an agency may not introduce evidence before the Board that goes beyond the specific instances of unacceptable performance identified in the notice of proposed removal. Neither the statutory section nor its legislative history so provide. Section 4303(b)(1) states in pertinent part only:

(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—

(i) 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.

The Senate Committee Report that Ms. Wallace cites states:

The Committee added to section 4303(b), as proposed in the original bill, the requirement that the advance notice to the employee must specifically cite any failure by the employee during the past year which the agency may consider when making a decision on the proposed action. An agency may consider, for example, a previous proposal to remove that was not carried out because of short-term improvement in performance. Unless the particular failure to perform acceptably is cited in the advance notice, the agency may not rely upon it as a grounds for demoting or removing the employee.

S.Rep. No. 969, 95th Cong., 2d Sess. 43, reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2765.

This provision relates only to the notice of proposed removal, and bars an agency from basing its action upon material not cited in the notice. It did not bar the Air Force from introducing the evidence it submitted to the Board to justify its removal of Ms. Wallace.

CONCLUSION

The decision of the Merit Systems Protection Board is

AFFIRMED.