Schnell v. Department of the Army , 605 F. App'x 974 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY S. SCHNELL,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3006
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-07-0700-X-2.
______________________
Decided: March 25, 2015
______________________
GARY S. SCHNELL, Sparta, WI, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
2 SCHNELL v. ARMY
PER CURIAM
Petitioner Gary Schnell appeals the final order of the
Merit Systems Protection Board (“Board”) dismissing his
petition for enforcement of the Board’s order requiring the
Army (“Agency”) to promote Petitioner to an appropriate
position at the GS-12 level effective October 31, 2006, and
to pay him back pay with interest from that date to Janu-
ary 15, 2011. Schnell v. Dep’t of the Army, No. CH-1221-
07-0700-X-2 (M.S.P.B. Aug. 21, 2014) (Resp’t’s App. 146–
56) (“Final Order”). Because substantial evidence sup-
ports the Board’s finding that the Agency complied with
its directive regarding the appropriateness of Mr.
Schnell’s job placement and the sufficiency of the interest
payments, this court affirms.
BACKGROUND
In March 2003, Mr. Schnell worked as a Supervisory
Quality Assurance Specialist (GS-0301-11) in the Direc-
torate of Support Services (“DSS”) at Fort McCoy, Wis-
consin. In this position, Mr. Schnell authored a Quality
Assurance Surveillance Plan (“QASP”) for work performed
on a $109 million contract and supervised eighteen quali-
ty assurance employees. In an effort to allow for more
subjective government inspections, Mr. Schnell revised
the QASP seventeen times. However, he acknowledged
that he was too inexperienced to develop a QASP that
properly protected the Agency’s interests.
In December 2004, when Mr. Schnell’s QASP was still
in use, the Army Audit Agency (“AAA”) began an audit of
Fort McCoy’s inspection procedures. Mr. Schnell “dis-
closed problems with the inspection process and other
matters to AAA auditors.” Final Order at 4 In July 2006,
the AAA issued its audit report and found “Fort McCoy
must improve its monitoring of contractor performance.”
Id.
SCHNELL v. ARMY 3
Mr. Schnell’s superiors informed him that the direc-
torate he worked for would be reorganized, the DSS A-76
contract, for which he monitored performance of other
employees was about to expire and that his position would
be abolished. Mr. Schnell subsequently “applied for
promotion to Facility Operations Specialist, GS-1640-12, a
temporary position to become effective October 2006.” Id.
He was not selected for this position.
In 2008, the DSS A-76 contract ended, and was re-
placed by several smaller contracts. The Agency reor-
ganized and divided the DSS into the Directorate of
Public Works and the Directorate of Logistics. Later that
year, the Agency realigned Mr. Schnell’s position to the
Directorate of Public Works, where he supervised off-post
employees performing quality assurance work until all
remaining contracts were awarded. Before his realign-
ment to another directorate, Mr. Schnell’s position and
pay were evaluated under the Total Army Performance
Evaluation System (“TAPES”). However, post realign-
ment, his pay was set according to the National Security
Personnel System (“NSPS”), 1 which had different evalua-
tion and rating procedures. 2
“On February 1, 2009, the Agency abolished Mr.
Schnell’s position and laterally reassigned him to Envi-
ronmental Protection Specialist, GS-0028-11.” Resp’t’s
App. 80. Upon reassignment, Mr. Schnell “expressed
concerns that the Environmental Protection Specialist
1 The NSPS was a pay for performance system cre-
ated in 2004 under the authorization of Congress for the
United States Department of Defense.
2 The Agency later abandoned its use of NSPS and
transferred affected employees back to the GS system.
During the period in which Mr. Schnell’s back pay award
and interest payments were being calculated, the Agency
reverted to using the GS payment schedule.
4 SCHNELL v. ARMY
position ‘might be declared illegal in six months or a year’
because ‘[t]here needs to be a much sharper delineation
between what is in the contract and what is not in the
contract.’” Resp’t’s App. at 79.
I. Procedural History
On March 20, 2007, Mr. Schnell filed a complaint with
the Army’s Office of Special Counsel (“OSC”) asserting the
Agency “cut him out of quality assurance for the DSS A-
76 contract, threatened to eliminate his position, and
denied him a temporary promotion to Facility Operations
Specialist in reprisal for protected whistleblowing.” Id.
On July 23, 2007, the “OSC terminated its inquiry into
[Mr. Schnell’s] allegations and notified him of his right to
seek corrective action from the Board.” Id.
On September 25, 2007, Mr. Schnell filed an Individ-
ual Right of Action (“IRA”) appeal under the Whistleblow-
er Protection Act (“WPA”) with the Board. This action was
dismissed for lack of jurisdiction by the Administrative
Judge (“AJ”) on January 25, 2008. The Board adopted the
AJ’s decision, denying Mr. Schnell’s petition for review in
a final order. See Schnell v. Dep’t of the Army, No. CH-
1221-07-0700-W-1 (M.S.P.B. July 3, 2008). Mr. Schnell
appealed the Board’s decision. This court vacated the
Board’s July 3, 2008 Final Order and remanded the case
for further proceedings related to his whistleblower
allegations. Schnell v. Dep’t of the Army, 345 F. App’x 537
(Fed. Cir. 2009).
On June 18, 2009, the AJ issued a remand decision
finding the Board had jurisdiction of Mr. Schnell’s IRA
appeal, but denying him corrective action on the merits of
his claim. The AJ found Mr. Schnell “did not show by a
preponderance of the evidence that a protected disclosure
was ‘a contributing factor’ in a personnel action.” Id.
On April 20, 2010, the Board granted Mr. Schnell’s
petition for review. The Board issued an Opinion and
SCHNELL v. ARMY 5
Order, granting Mr. Schnell’s request for corrective action
and ordering the Agency to promote him to grade GS-12,
effective October 31, 2006. See Schnell v. Dep’t of Army,
114 M.S.P.R. 83, 85 (2010). The Board determined Mr.
Schnell’s “non-selection for a temporary promotion and
the threatened elimination of his position are personnel
actions under the WPA and that the [A]gency has failed to
prove by clear and convincing evidence that it would have
taken those personnel actions in the absence of protected
whistleblowing disclosures.” Resp’t’s App. 81 (citing
Schnell, 114 M.S.P.R. at 95).
Per the Board’s order, “the Agency processed [Mr.
Schnell’s] temporary promotion to Facility Operations
Specialist, GS-1640-12, from October 31, 2006, to Sep-
tember 30, 2007.” Id. On May 14, 2010, Mr. Schnell filed
a petition for enforcement seeking further compliance
with the Board’s order regarding his promotion. The AJ
found that the Army failed to demonstrate full compliance
with the Board’s order and recommended that the Board
grant Mr. Schnell’s petition.
On June 16, 2011, the Board remanded Mr. Schnell’s
petition for further evidentiary proceedings concerning
his job placement and back pay. The Board held that “the
[A]gency failed to provide sufficient evidence showing the
appellant received the back pay with interest to which he
[was] entitled.” Resp’t’s App. 82. With respect to Mr.
Schnell’s promotion, the Board determined the Agency did
not provide a sufficient explanation for placing him in the
Environmental Engineer position and did not address his
“argument that the position is not substantially equiva-
lent in its status and duties to his former Supervisory
Quality Surveillance Specialist position.” Id.
On remand, the AJ conducted a hearing regarding the
appropriateness of Mr. Schnell’s corrective action place-
ment and the sufficiency of the interest payments on his
award of back pay. The Agency provided witnesses and
6 SCHNELL v. ARMY
both parties provided additional documentary evidence.
[Id.] On the basis of evidence gathered at the hearing,
the AJ determined Mr. Schnell’s post-corrective action
“position was substantially equivalent in scope and status
to the duties of the appellant’s former position, as well as
to the temporary Facility Operations Specialist position to
which he was denied a promotion.” Final Order at 2
(footnote omitted).
However, the AJ “found that the [A]gency failed to
demonstrate that the appellant received the correct
interest on his back pay in light of errors the [A]gency
made that were discussed, but not fully explained, by its
witnesses at the hearing.” Id. at 2–3 (citing Remand
Recommendation at 10). Finally, the AJ determined that
because the Agency conceded Mr. Schnell was working in
an inappropriate position during the part of the back pay
period when the NSPS was in effect, Mr. Schnell’s per-
formance ratings should have been increased based on his
performance evaluations in prior years.
In response to the AJ’s recommendation, the Agency
provided additional documents showing Mr. Schnell’s
back pay and interest payments were calculated properly,
Final Order at 4, and that retroactively increasing Mr.
Schnell’s performance ratings under the NSPS pursuant
to the AJ’s order would have had an adverse effect on his
back pay award. 3 Id.
3 The Board requested the Agency provide an ex-
planation for why it failed to make the recalculations of
back pay and interest in order to reflect Mr. Schnell’s
performance rating during the NSPS period. Final Order
at 4. In response, the Agency asserted “it had not made
the changes because of evidence that it submitted show-
ing a re-creation of the NSPS rating and pay pool for [Mr.
SCHNELL v. ARMY 7
Upon review of the AJ’s evidentiary hearing findings,
the Board determined the Agency was in compliance with
the Board’s decision and dismissed Mr. Schnell’s petition
for enforcement. Final Order at 9. Mr. Schnell appeals,
this court has jurisdiction under 28 U.S.C. § 1295(a)(9)
(2012).
DISCUSSION
I. Standard of Review
This court’s review of a decision of the Board is lim-
ited by statute. The Board’s decision must be affirmed
unless it is: “(1) arbitrary, capricious, an abuse of discre-
tion, 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) (2012); see Briggs v. Merit
Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
This court must set aside a Board decision “unsup-
ported by substantial evidence when it lacks such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McLaughlin v. Office
of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004)
(internal quotation marks and citations omitted).
II. Mr. Schnell Is Not Entitled to a Higher Rating
Under NSPS
On appeal, Mr. Schnell contends that because he was
given “exceptional ratings, (‘1’s’) in the TAPES system,” 4
Schnell] would significantly reduce his pay below what he
already received.” Id.4 Under TAPES, performance evaluations ranged
from a high of number “1” to a low of number “5.” A
number “5” rating was considered unsuccessful. The
number range “3” to “1” were considered “successful” with
the number “3” being low and number “1” considered
8 SCHNELL v. ARMY
he should have been provided an equivalent evaluation
under the new NSPS performance rating system. Pet’r’s
Br. 10. According to Mr. Schnell, “[s]ix weeks after the
first [A]gency submission . . . they changed the rating type
[back] to TAPES and gave me a ‘fully successful’ ‘3’ rating
in the TAPES System.” Pet’r’s Br. 10–11. Mr. Schnell
asserts that he “was [previously] rated ‘exceptional’ (‘1’)
not ‘fully successful’ (‘3’) under the TAPES system.”
According to Mr. Schnell, the problem was “that [the]
rating system changed from TAPES to NSPS.” Id. at 11.
The Board credited the testimony of Mr. Schnell’s
former supervisor, Darrell Neitzel, who according to the
Board “persuasively testified that the higher rating under
the NSPS that [Mr. Schnell] seeks would not have been
the equivalent of the rating that he received for the
preceding period under the previous appraisal plan
[TAPES] because of differences in the two plans.” Final
Order at 5 n.4. Mr. Neitzel testified that
[b]ecause according to the NSPS rating criteria, if
you did everything that you were supposed to do
as a requirement of your job, that was considered
a Level 3. As I said, this is where NSPS, the cri-
teria used in evaluations was much different than
our old TAPES system where pretty much every-
body got top-block whether you just did your job or
not.
But in the NSPS system, the fully complying, or
completing all of the requirements of your position
was considered you were operating at Level 3. In
order to get to a 4 or a 5, which is a higher rating,
high. Pet’r’s Br. 9–10. Conversely, under NSPS, this
order was inverted such that the highest performers were
ranked as number “5” and lower performers received
number “1.” Id.
SCHNELL v. ARMY 9
you had to have demonstrated that you did, that
you went above and beyond the normal expecta-
tion of the position.
Resp’t’s App. 74–75 (emphasis added).
Mr. Schnell argues the Agency should have granted
him a higher rating because he went “above and beyond”
and because he “blew the whistle on several areas of
deficiency and, in all likelihood, effected some positive
changes.” Pet’r’s Br. 12.
Mr. Schnell’s contention is unsupported by record evi-
dence. During his testimony, in providing instances that
would compel a higher performance rating, his supervisor,
Mr. Neitzel outlined additional actions that an employee
must take before being granted a higher performance
rating under NSPS. Specifically, Mr. Neitzel testified
that such an employee would have to “have taken some
special initiative to have gone out perhaps and created
some training program or [would have to have] developed
some new processes for the organization.” Resp’t’s App.
76. Thus, unlike the TAPES system, NSPS requires more
than an employee’s satisfactory performance of a particu-
lar task. Mr. Neitzel’s testimony provides evidence that
NSPS and TAPES performance evaluation systems are
fundamentally distinct.
Here, Mr. Schnell does not provide any support for his
contention that, under NSPS, the only factor required for
a higher performance rating is for an employee to go
“above and beyond” the necessary requirements for the
performance of a job. Because the Agency articulated
additional factors considered for a higher performance
rating, substantial evidence supports the Board’s finding
that the higher performance rating sought by Mr. Schnell
under NSPS would not have been equivalent to his rating
under TAPES.
10 SCHNELL v. ARMY
III. Mr. Schnell’s Back Pay and Interest Payments Were
Properly Calculated
Mr. Schnell next argues the Agency miscalculated his
back pay and interest payments. He argues he was
provided the same amount of back pay and interest irre-
spective of the AJ’s recommendation that the Agency
should replace his level 2 performance rating for the time
he worked as a GS-11 Environmental Protection Special-
ist during the part of the back pay period when the NSPS
was in effect, with a level 3 fully successful rating.
The Board credited the Agency’s determination that it
expressly made no changes to his back pay and interest
payments because it submitted evidence “showing a re-
creation of the NSPS rating and pay pool for [Mr. Schnell]
would significantly reduce his pay below what he already
received.” Final Order at 4.
Mr. Schnell does not direct the court to any evidence
contradicting the Agency’s contention concerning its
reason for using the TAPES as opposed to the NSPS
rating schedule. Instead, Mr. Schnell argues “[t]he
[A]gency submitted no evidence or documentation to back
up [its decision to use TAPES instead of NSPS]. I believe
the Board erroneously accepted this statement without
any evidence.” Pet’r’s Br. 15.
In its response to the AJ’s order dated November 5,
2013, the Agency provided exhibits showing that any
effort to recreate the NSPS rating and pay pool for Mr.
Schnell for 2008 and 2009 would be less favorable to him
than the current disposition. For example, with respect to
2008, the Agency noted:
By moving [Mr. Schnell] to the TAPES system, he
in fact had a 2008 year end salary of $78,381. . . .
This is due to the award of a Within Grade In-
crease (WGI) on [Nov. 9 2008]. The WGI would
not have been available to [Mr. Schnell] were he
SCHNELL v. ARMY 11
in NSPS. [Mr. Schnell] also received a 1.5% pay
increase under TAPES that would not have been
available to him under NSPS.
Resp’t’s App. 140 (internal citation omitted).
Here, because the Agency has presented evidence
supporting its assertion that Mr. Schnell’s back pay and
interest payments were higher under TAPES and because
Mr. Schnell has failed to present any evidence refuting
this claim, this court finds substantial evidence supports
the Board’s determination that the Agency’s use of NSPS
would have adversely impacted Mr. Schnell’s back pay
and interest payments.
Mr. Schnell next argues the Agency made a “major er-
ror” in its calculations of his 2006 base salary. Pet’r’s Br.
16. Specifically, Mr. Schnell asserts “the base salary
should be $64,585.00 not $63,928.00 as shown in [the
Agency’s] calculations” because “the [A]gency failed to
take [his] retroactive promotion to GS-12, Step 6, effective
[October 31, 2006], into account.” Id. at 16.
The Agency contends Mr. Schnell “knew that the base
salary used in [its] calculations for the first year was
$63,928 because the [Agency] pointed it out in the pages
that Mr. Schnell admits he received.” Resp’t’s Br 14. The
Agency also argues “[e]ven if [this court] were to accept
[Mr. Schnell’s] clams about an incorrect 2006 starting
salary, [Mr. Schnell] failed to demonstrate that using the
‘correct’ starting salary would have resulted in higher pay
under the NSPS than under TAPES.” Id. Furthermore,
the Agency contends that this salary “was clearly identi-
fied as the starting salary in the ‘NSPS Payout Recon-
struction’ table that Mr. Schnell also concedes he
received” and “[r]ather than provide the [B]oard with
evidence in an effort to show that the [Agency’s] calcula-
tions were incorrect, [Mr. Schnell] failed to act for nine
months and only now alleges errors before this Court.”
Resp’t’s Br. 14.
12 SCHNELL v. ARMY
This court has held that “in situations where a party
appeared pro se before the lower court, a court of appeals
may appropriately be less stringent in requiring that the
issue have been raised explicitly below.” Forshey v.
Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002). Specifical-
ly, Forshey teaches “a court of appeals may require less
precision in the presentation of the issue to the lower
court than it demands of a litigant represented by coun-
sel.” Id.Although Forshey allows this court to be less stringent
in requiring an issue to be presented before the Board,
even under a less stringent approach, Mr. Schnell cannot
now present his argument. Here, Mr. Schnell never
presented to the Board or to the AJ his argument that the
Agency employed the incorrect base salary because it
failed to account for the Board’s order to promote him to
the GS-12 grade level effective October 31, 2006.
Furthermore, as asserted by the Agency, the NSPS
Payout Reconstruction for the years 2007 and 2008 was
provided to Mr. Schnell. Mr. Schnell does not assert that
he did not receive this document, nor does he present any
extenuating or limiting circumstance that impeded his
ability to present this information to the Board. There-
fore, Mr. Schnell has waived this argument.
IV. The Board Correctly Determined the Agency’s Place-
ment of Mr. Schnell in the Environment Engineer, GS-12,
Position Complied With Its Decision
The Board concluded the Agency’s placement of Mr.
Schnell in an Environmental Engineer (GS-12) position
was in accordance with its directive. Final Order at 7.
The Board affirmed the AJ’s determination that Mr.
Schnell’s position as a GS-12 Environmental Engineer
was “substantially equivalent in scope and status to the
position he would have received absent his whistleblow-
ing.” Id. In response to Mr. Schnell’s contention that he
does not perform the most significant duties of his posi-
SCHNELL v. ARMY 13
tion, the Board determined Mr. Schnell has “not pointed
to any specific evidence in the record before the [AJ] that
shows she erred in finding that he did not occupy a sham
position.” Id. at 8. Specifically, the Board concluded that
the duties such as “developing significant environmental
compliance policies and procedures . . . or serving as a
contract officer representative[,] . . . are only some of the
varied higher level responsibilities of his position.” Id.
On appeal, Mr. Schnell contends that he did not per-
form the majority of duties set forth for the Environmen-
tal Engineer position. Specifically, he asserts that in
total, he “did about 10% to 20% of what was listed in the
job description.” Pet’r’s Br. 23.
The Agency argues that “to the extent [Mr. Schnell]
did not perform some of the job responsibilities, the
[B]oard noted statements from [Mr. Schnell’s] supervisors
indicating that [he] failed to perform various assigned
duties, not that he had no responsibility for those duties.”
Resp’t’s Br. 16. For example, the Agency cites a Senior
System Civilian Evaluation Report where a performance
appraisal states that Mr. Schnell “works in accordance
with his own agenda instead of working toward goals
prescribed by Senior Management.” Id. (citing Resp’t’s
App. 117).
In response to the Agency’s contention that he failed
to perform the tasks assigned to him as opposed to having
no responsibility for their performance, Mr. Schnell cites a
report stating: “[m]eeting a suspense date means that the
product has been reviewed and approved by the supervi-
sor. Some leniency will be given if the supervisor requires
more than a week to review.” Pet’r’s Br. 27 (internal
quotation marks and citation omitted). According to Mr.
Schnell, this meant that
if [I] had a suspense (deadline) to get a report
done by 10 August and [he] submitted the report
on 5 August, if the supervisor didn’t have time to
14 SCHNELL v. ARMY
review and approve the report by 10 Aug, [I]
failed, or if the supervisor reviewed the report and
returned it to me on 11 Aug with perceived punc-
tuation errors, I failed.
Pet’r’s Br. 27.
Mr. Schnell’s assertion does not address the Agency’s
contention that he had an “apparent lack of desire to
perform tasks assigned to him [which was] degrading the
overall performance of [the] Compliance Branch and
delaying the completion of critical actions that need to be
taken.” Resp’t’s App. 118. Rather, his argument merely
addresses the process employed by the Agency in evaluat-
ing whether he was successful at completing a particular
task.
The issue is whether Mr. Schnell actually carried out
the duties assigned to him and necessary for his position.
Here, because Mr. Schnell has failed to refute the Agen-
cy’s contention that he did not carry out his assigned
tasks, substantial evidence supports the Board’s finding
that he was not assigned to a sham position and the
Agency complied with the Board’s directive in assigning
him to the GS-12 Environmental Engineer position.
CONCLUSION
For the foregoing reasons, the Board’s decision is
AFFIRMED