Moltzen v. Department of Labor , 504 F. App'x 912 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID W. MOLTZEN,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
______________________
2012-3145
______________________
Petition for review of the Merit Systems Protection
Board in no. SF0432100994-I-1.
______________________
Decided: February 6, 2013
______________________
DAVID W. MOLTZEN, of Vallejo, California, pro se.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respond-
ent. With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and PATRICIA M. MCCARTHY, Assistant Director. Of
counsel was LAURA BREMER, Trial Attorney, United States
Department of Labor, of San Francisco, California.
______________________
2 DAVID MOLTZEN v. LABOR
Before MOORE, CLEVENGER, and O'MALLEY, Circuit Judges.
PER CURIAM.
David Moltzen seeks review of the final decision of the
Merit Systems Protection Board (Board) sustaining his
removal from the position of Employee Benefit Security
Administration (EBSA) Senior Investigator for unac-
ceptable performance. Moltzen v. Dep’t of Labor, Docket
No. SF0432100994-I-1 (M.S.P.B. April 6, 2012) (“Final
Decision”). We affirm.
I
Mr. Moltzen served as a GS-13 Senior Investigator
from October 2004 until August 2010, when he was re-
moved for poor performance. As a Senior Investigator, Mr.
Moltzen was responsible for initiating, planning, coordi-
nating, and managing “extremely broad, difficult civil and
criminal investigations” related to the business, financial,
and accounting practices of employee pension and welfare
benefit plans. Mr. Moltzen’s position required “in-depth
knowledge” of the Employee Retirement Income Security
Act (ERISA). GS-13 Investigators are expected to perform
their work independently.
Mr. Moltzen was required to perform at an “accepta-
ble” level in each of four elements critical to his position.
As relevant to this appeal, performance is acceptable in
critical element 2, Quality of Investigations, when with
“few exceptions:”
A. Potential violations are identified and re-
searched.
B. Leads are explored, sufficient interviews are
conducted, relevant records are obtained, and the
evidence gathered is sufficient to support the in-
vestigative findings.
C. Work products, such as ROIs [Reports of Inves-
tigation], and VC [Voluntary Compliance] letters,
DAVID MOLTZEN v. LABOR 3
include clear and concise presentation of the facts
and a technically well-founded application of the
relevant statutes to the facts.
D. Oral representations made at meetings (VC,
Settlement, and Supervisory) involving the appli-
cation of relevant civil statutes are technically
correct.
E. Answers to inquiries are comprehensive and
technically accurate.
F. Confidential information and case file materi-
als are maintained in accordance with EBSA and
Regional Office Procedures.
G. Contacts with governmental agencies and other
organizations are in accordance with EBSA guide-
lines, applicable laws, regulations, and interagen-
cy agreements and are handled in a professional
manner.
Moltzen v. Dep’t of Labor, No. SF-0432-10-0994-I-1 at 9-10
(M.S.P.B. Aug. 12, 2011) (“Initial Decision”) (emphasis
added). By contrast, performance “needs-to-improve” and
is “minimally acceptable” when the employee meets the
above criteria with “some”—as opposed to only a “few”—
exceptions. Id. (emphasis added).
Mr. Moltzen’s review process began in April 2009,
when he was told in a mid-year review that his work may
not meet the performance standards in three of the four
critical areas. Suzanne Fischer, Mr. Moltzen’s direct
supervisor, gave Mr. Moltzen a 60-day informal improve-
ment period, and provided Mr. Moltzen with specific
feedback and steps to improve his performance.
When Mr. Moltzen’s performance failed to improve,
Ms. Fischer placed him on a Performance Improvement
Plan (PIP). See 5 U.S.C. § 4302 (a PIP provides an em-
4 DAVID MOLTZEN v. LABOR
ployee with notice of performance failings and identifies
specific goals to meet to retain employment).
Mr. Moltzen and Ms. Fischer reviewed the PIP to-
gether, and a few days later Ms. Fischer issued a lengthy
memorandum discussing Mr. Moltzen’s deficient perfor-
mance and giving him 90 days to improve. During the 90-
day PIP period, Ms. Fischer or another supervisor met
with Mr. Moltzen weekly to discuss his progress and
provide guidance on improving his work.
During the PIP, Mr. Moltzen worked primarily on two
cases, which are referred to in the Board decision as the
“Union” case and the “A” case. Ms. Fischer found that Mr.
Moltzen’s work on both of these cases was deficient. For
example, Mr. Moltzen’s work product on the “Union” case
required multiple revisions, and still failed to include
legal analysis, omitted several key issues, and included
one issue that EBSA lacks jurisdiction over. On the “A”
case, Ms. Fischer had to return Mr. Moltzen’s work prod-
uct three times for “substantive omissions.”
Based on this performance and failure to improve, af-
ter an extended 132-day PIP period, Mr. Moltzen was
removed from his position.
On review, an administrative judge (AJ) upheld Mr.
Moltzen’s removal. Although the AJ found that EBSA’s
“definition of performance would be impermissibly vague
if no further clarification was provided,” he concluded that
communications from Ms. Fischer cured any vagueness in
the standards. The AJ discussed in detail Mr. Moltzen’s
performance on the Union case and the A case, and found
that Mr. Moltzen indeed failed to bring his performance in
critical element 2, Quality of Investigations, up to a
minimally acceptable level.
Mr. Moltzen appealed the AJ’s decision to the Board.
The Board denied Mr. Moltzen’s petition for review and
affirmed the AJ’s decision. This appeal followed.
DAVID MOLTZEN v. LABOR 5
II
We have jurisdiction under 5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9). We must affirm the Board’s final
decision unless we determine that 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); Sandel v. Office of Pers. Mgmt., 28
F.3d 1185, 1186 (Fed. Cir. 1994).
III
A
Mr. Moltzen’s primary complaint is that the EBSA used
unlawfully-subjective criteria to evaluate his perfor-
mance. Under 5 U.S.C. § 4302(b)(1), a performance
evaluation system must establish “performance standards
which will, to the maximum extent feasible, permit the
accurate evaluation of job performance on the basis of
objective criteria.”
Mr. Moltzen emphasizes the AJ’s finding that the
“some” versus “few” difference in performance standards
was impermissibly subjective. Mr. Moltzen contends that
the vague written standards cannot be “cured” and there-
fore cannot be the basis for his removal.
This court addressed the requirements of § 4302(b)
and the possibility of explicating written performance
standards in Salmon v. Social Security Administration,
663 F.3d 1378 (Fed. Cir. 2011) and in Wilson v. Depart-
ment of Health & Human Services, 770 F.2d 1048 (Fed.
Cir. 1985).
An adequate performance standard must be “suffi-
ciently precise and specific as to invoke a general consen-
sus as to its meaning and content.” Wilson, 770 F.2d at
1052. However, the “performance standard” is not the
6 DAVID MOLTZEN v. LABOR
written standard read in isolation. Instead, “[t]he efforts
of a supervisor to instruct the employee on how best to
satisfy the standard also matter[].” Salmon, 663 F.3d
1382.
As we explained in Salmon, the question to be evalu-
ated is whether the performance plan, “in light of the
supervisor’s efforts at instruction, [was] clear, precise, and
specific enough to be ‘objective.’” Id.Mr. Moltzen argues that his case is unlike Salmon
and Wilson because the rating standards applied to him
were impermissibly vague as written. The prior cases, Mr.
Moltzen argues, involved valid performance standards
that were then further explained and applied to the
employee. Thus, Mr. Moltzen contends that there is no
precedent for “curing” an invalid performance standard
with further clarification from a supervisor.
The government makes two responses. First, the gov-
ernment asks us to find that the performance standards
were not, in fact, impermissibly vague. Second, if we
decline, the government asks us to find that the perfor-
mance standards were adequately clarified and elaborat-
ed on in this case.
First, we agree with the AJ that the performance
standards were inadequate as written. While it is clear
that “some” errors is more than a “few” errors, it is un-
clear by how much. How can a reasonable employee know
when they have passed from a “few” errors into “some”
error territory? That is not to say that performance
standard must specify a certain numbers of errors allowed
per rating. Wilson, 770 F.2d at 1052; Salmon, 663 F.3d at
1381-82. However, the difference between “some” and
“few” is not “sufficiently precise and specific as to invoke a
general consensus as to its meaning and content,” Wilson,
770 F.2d at 1052, and without further elaboration or
guidance cannot be the basis for removing an employee.
DAVID MOLTZEN v. LABOR 7
Turning now to the question of whether the perfor-
mance standards, as applied to Mr. Moltzen, were ade-
quate, we must answer yes. Mr. Moltzen’s basis for
distinguishing cases like Salmon results from a misun-
derstanding over what is accurately considered a “perfor-
mance standard.” As we held in Salmon, the performance
standard must be evaluated “in light of the supervisor’s
efforts at instruction.” 663 F.3d at 1382. Evaluating Mr.
Moltzen’s review and removal process from that perspec-
tive, it is clear that Mr. Moltzen was given adequate
guidance as to what work fell below minimally acceptable
performance.
As described in detail in the AJ’s decision, Ms. Fischer
discussed the relevant performance standards with Mr.
Moltzen throughout the PIP period. Ms. Fischer explained
the difference between “some” and “few” errors and specif-
ically told Mr. Moltzen that “he needed to avoid making
repetitive errors, submitting work requiring excessive
revisions, needing excessive guidance, failing to work
independently, and failing to identify violations or fiduci-
aries.” Initial Decision at 11. Furthermore, Ms. Fischer’s
PIP memorandum detailed Mr. Moltzen’s failings with
regard to the Union case and the A case and provided him
with specific steps to bring his performance up to the
minimally acceptable level.
Based on the AJ’s findings, as sustained by the Board,
we agree that Mr. Moltzen’s performance plan, “in light of
the supervisor’s efforts at instruction, [was] clear, precise,
and specific enough to be ‘objective.’” Salmon, 663 F.3d at
1382.
8 DAVID MOLTZEN v. LABOR
B
Mr. Moltzen goes on to argue that his performance did
not fall below the minimally acceptable level. The AJ and
the Board carefully reviewed Mr. Moltzen’s performance
during the PIP and agreed that it did not meet the level
for retention as a GS-13 Senior Investigator. Because the
Board’s findings are supported by substantial evidence
and it did not err as a matter of law, we affirm its ruling
that the Agency properly removed Mr. Moltzen for failing
to comply with the PIP.
The Board analyzed all of the record evidence, con-
cluded that Mr. Moltzen’s removal was appropriate, and it
is not for this Court to reweigh the evidence on ap-
peal. See, e.g., Henry v. Dep’t of Navy, 902 F.2d 949, 951
(Fed. Cir. 1990). The Board also found the evidence and
testimony supporting removal more credible than evi-
dence proffered by Mr. Moltzen. To the extent that Mr.
Moltzen challenges the weight afforded this evidence, we
note that the determination of witness credibility is
within the Board’s discretion and, in general, is largely
unreviewable on appeal. See, e.g., King v. Dep’t of Health
and Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998).
C
Mr. Moltzen’s final argument is that he was not given
an adequate opportunity to improve. The AJ’s finding that
Ms. Fischer gave Mr. Moltzen a reasonable opportunity to
improve as required by 5 U.S.C. § 4304 is supported by
substantial evidence. Mr. Moltzen was given a 90-day
informal improvement period and then an extended 132-
day PIP, during which Ms. Fischer met with him nearly
weekly to discuss his performance and offer feedback on
how to improve.
IV
Upon careful review of the record, and all of Mr.
Moltzen’s assertions and arguments, we conclude that the
DAVID MOLTZEN v. LABOR 9
Board committed no reversible error in affirming Mr.
Moltzen’s removal. The final decision of the Board is
therefore affirmed.
AFFIRMED
COSTS
No costs.