Catherine D. Crider v. Department of the Navy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATHERINE D. CRIDER, DOCKET NUMBER
Appellant, SF-0432-14-0451-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Catherine D. Crider, Nixa, Montana, pro se.
Diana L. King, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal for performance-based reasons. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant served as an Administrative Specialist [Senior Project
Business and Financial Manager (BFM)], NO‑4, 2 in the agency’s Scientific and
Technical Reinvention Laboratory Demonstration Personnel system. Initial
Appeal File (IAF), Tab 5 at 26. Her duties required her to assist other Project
BFMs in financial matters; coordinate and respond to data calls; implement
processes, provide advice and recommendations in planning, preparing,
processing, and coordinating tasks in the areas of budget, accounting,
procurements, and contracts; work with others to develop strategies for issues
concerned with funding projections and estimates; review outstanding
commitments and obligations; prepare various reports, track project expenditures,
process funding documents, identify and submit corrections for erroneous
charges, respond to budget and accounting drills and to status requests from
sponsors; prepare, process, execute, and track procurement and contract actions;
and interact with sponsors, contractor personnel, and various departments to
facilitate execution of day-to-day financial and administrative requirements. Id.2
The appellant has not challenged the administrative judge’s statement that the position
is equivalent to a GS-11. Initial Decision at 1 n.1.
3
at 28. Over a year after her selection in June 2011, a new supervisor began to
perceive issues with the appellant’s performance regarding lack of timeliness and
consistency, and formatting errors. Id. at 32. The appellant’s supervisor
counseled her mid-year, and then formally on May 1, 2013. IAF, Tab 19.
Continuing to find errors in the appellant’s Procurement Requisitions (PR) and
inaccuracies in other of her work products, her supervisor placed her on a 90-day
performance improvement plan (PIP) beginning on June 19, 2013, which included
training, the assignment of a mentor, and weekly meetings with the appellant’s
supervisor. IAF, Tab 20. By notice dated October 23, 2013, the appellant was
informed that she had failed the PIP because she had not demonstrated acceptable
quality in the “Technical” critical element in the tasks of PRs, Outgoing Funding
Documents, Financial Status Reports, Funds Management Reports, and Incoming
Funding Log/PR Log. IAF, Tab 21. The appellant grieved those findings but, on
January 9, 2014, upon review, her second-level supervisor agreed that she had
failed the PIP. IAF, Tab 8. On January 17, 2014, the second-level supervisor
proposed the appellant’s removal for unacceptable performance under 5 U.S.C.
chapter 43, IAF, Tab 6 at 5, and on March 6, 2014, the Head, Business and
Financial Management, concurred that the appellant’s performance was
unacceptable, warranting her removal, effective that day, IAF, Tab 7 at 5.
¶3 On appeal, the appellant challenged the basis for the PIP and for her
removal, arguing that the errors attributed to her were exaggerated and that the
adverse findings regarding her performance were predetermined by her
supervisors. The appellant also alleged that the agency’s action was due to
retaliation based on her whistleblowing activities. IAF, Tab 1 at 7-16. She
requested a hearing. Id. at 1.
¶4 Thereafter, the administrative judge issued an initial decision affirming the
agency’s action. IAF, Tab 26, Initial Decision (ID) at 1, 22. He found that the
agency received approval by the Office of Personnel Management of its
performance appraisal system, ID at 4-5; that the agency apprised the appellant of
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her performance standards which provided measurable benchmarks, ID at 5-6,
notified her of her unacceptable performance, and gave her a reasonable
opportunity to improve, ID at 6-8; and that her performance during that period
was unacceptable, ID at 9-13. The administrative judge considered, but found
unsupported, the appellant’s claim that the agency’s action was taken in
retaliation for her protected activity; namely, her disclosing a misappropriation of
funds by the agency and nepotism. ID at 13‑21.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the
appellant has submitted a reply thereto, PFR File, Tab 6.
¶6 On review, the appellant challenges the administrative judge’s finding that
the agency presented substantial evidence that it notified her of her unacceptable
performance and gave her a reasonable opportunity to improve. 3 Specifically, the
appellant disputes the administrative judge’s reliance on the testimony of the
Project BFM assigned to meet with the appellant twice weekly during the PIP
period in a mentoring role to the effect that she did not take advantage of the
meetings and seemed defensive and distracted. ID at 8. The appellant asserts
that the testimony “lacks integrity.” PFR File, Tab 1 at 17. To the extent that the
appellant is attacking the witness’s credibility, it is well established that the
Board must defer to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such decisions only
when it has “sufficiently sound” reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶ 4 (2009) (explaining that when an
administrative judge has heard live testimony, his credibility determinations must
3
For purposes of clarity, we have addressed and analyzed the appellant’s arguments on
review in a different order from that in which they were raised.
5
be deemed to be at least implicitly based upon the demeanor of the witnesses). In
the absence of any such reason, the appellant has not shown that the
administrative judge erred in finding that, in its mentoring during the PIP period,
the agency afforded the appellant a reasonable opportunity to improve. 4
Moreover, as noted, the agency afforded the appellant a 90-day PIP. IAF, Tab 20.
The Board has found that even a 30-day PIP can satisfy an agency’s obligation to
provide an employee with a reasonable opportunity to demonstrate acceptable
performance. Towne v. Department of the Air Force, 120 M.S.P.R. 239,
¶ 10 (2013).
¶7 On review, the appellant also challenges the administrative judge’s finding
that her performance during the opportunity to improve period was unacceptable.
PFR File, Tab 1 at 18-26. The appellant argues, as she did below, that the errors
for which she was cited were not “true errors,” but rather petty discrepancies
regarding formatting, typographical errors involving, for example, addresses,
telephone and/or facsimile numbers, and that they were exaggerated, fabricated,
unfair, and unreasonable. Id. at 18, 23. She also disputes the number of errors
the agency asserts she made in connection with the five tasks listed under the
“Technical” critical element. Id. at 20‑22.
¶8 The performance standards for acceptable results in each of the five tasks
under the “Technical” critical element require the accurate submission of
documents and reports, as well as strict adherence to specific guidelines and
templates, and no more than two errors per document or report with the same type
of errors not subsequently repeated. IAF, Tab 20. In finding that she had failed
4
In an effort to counter her mentor’s testimony that she was defensive and distracted,
the appellant offers, as new and material evidence on this issue, a November 21, 2012
email she sent to her first-line supervisor which, in the appellant’s view, shows that she
was easy to work with. PFR File, Tab 1 at 28. Because this evidence predates the PIP
period by 6 months, it is neither new, Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980), nor material, Russo v. Veterans Administration, 3 M.S.P.R. 345,
349 (1980).
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the PIP, the Head, Business and Financial Management pointed out that the
appellant had exceeded the allowable number of errors in 61% of the PRs, 41% of
the Outgoing Funding Documents, 35% of the Financial Status Reports, and
66% of the Funds Management Reports, and that she had repeated the same type
of errors. The Head, Business and Financial Management also noted that the
appellant failed to update the Incoming Funding Log by the end of each work
week as required and had more than the allowable number of errors in certain
branches every week of the PIP period, and that, in 10 of the 12 weeks, there
were more than the allowable number of errors on the PR log, some of which
were repeated. IAF, Tab 21.
¶9 Although the appellant challenges the agency’s assessment of the precise
number of errors she made, she has neither alleged nor shown that she routinely
met the standard of no more than two errors per document or report or that she
did not repeat certain errors. And while, in her view, the errors were petty,
constituting only minor discrepancies, the Board generally defers to managerial
discretion in determining what agency employees must do to perform acceptably
in their positions. See Jackson v. Department of Veterans Affairs, 97 M.S.P.R.
13, ¶ 14 (2004). Bearing in mind that the agency’s burden of proof in a
performance action taken under chapter 43 is relatively low, substantial
evidence, 5 5 U.S.C. § 4302(b), the appellant has not shown error in the
administrative judge’s finding that the specific and well-documented information
regarding the appellant’s numerous errors and omissions constitutes more than
substantial evidence that she performed unacceptably during the PIP period in the
five tasks under the “Technical” critical element. 6
5
Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.56(c)(1).
6
The appellant challenges the administrative judge’s statement that her performance
during the 2012 rating year was “below expectations.” PFR File, Tab 1 at 25-26; ID
at 20. In fact, the appellant received an acceptable performance rating for the rating
7
¶10 On review, the appellant also challenges the administrative judge’s findings
regarding her claim that the agency’s action was taken in retaliation for her
protected activity. The administrative judge first addressed the appellant’s claim
that, in a grievance she filed over a 2012 Letter of Requirements she received
regarding her usage of leave during a period when she was unfunded, she stated
that a prior supervisor had instructed her that, under such circumstances, she was
to charge her time to certain project overhead funds. The appellant stated that she
had refused to follow the instruction, believing such practice to be a
misappropriation of funds. IAF, Tab 15, Part D at 6. The administrative judge
found that, even assuming that the appellant had made a protected disclosure in
this regard, there was no evidence that management personnel involved in her
removal were aware of it, much less that it was a contributing factor in that
action, or the source of any motivation to retaliate against her because of it. ID
at 16-17. The appellant argues that, on the contrary, her first- and second-level
supervisors, who were heavily involved in her removal, were also both directly
period July 1, 2011, to June 30, 2012, but she was deemed not to have met expectations
in “Teamwork and Communication,” and “Leadership,” and, under the “Technical”
critical element, she was cautioned to review her work more thoroughly to avoid
needless errors, although she was deemed to have met expectations. IAF, Tab 5 at 38.
The appellant’s overall rating was deemed insufficient to support a pay raise for her
during that rating year. Id. at 41. In any event, to the extent the administrative judge’s
statement was not a model of clarity, the appellant has not shown that any such error
was prejudicial to her substantive rights. Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984). In an effort to counter the administrative judge’s findings
regarding her performance, the appellant also argues that her performance prior to the
PIP was not below standard and that the ratings she received from other supervisors
were superior or better, but that the administrative judge did not consider these earlier
ratings. PFR File, Tab 1 at 6-7, 23. However, an agency is not estopped by a prior
satisfactory appraisal from taking a performance-based action against an employee at
any time during the appraisal cycle, when, as here, her performance in any critical
element becomes unacceptable. See Lee v. Department of Labor, 110 M.S.P.R. 355,
¶ 11 (2008). Moreover, the administrative judge’s failure to mention all of the evidence
of record does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d
1062 (Fed. Cir. 1985) (Table).
8
involved in the grievance review process. PFR File, Tab 1 at 14-15. While it is
true that both supervisors were named in the grievance, neither was alleged to
have violated any law, rule, or regulation in connection with the leave matter of
which the appellant complains. IAF, Tab 15, Part D at 6. Notwithstanding, to the
extent the administrative judge erred in finding that the appellant did not establish
that this disclosure, assuming it was protected, was a contributing factor in her
removal, she did not establish, as set forth below concerning her other disclosure,
that the administrative judge erred in finding that the agency showed by clear and
convincing evidence that it would have removed the appellant, even absent her
disclosures. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶11 The administrative judge also addressed the appellant’s claim that, in
another 2012 grievance she filed over a notice of proposed suspension for
inappropriate conduct, she reported nepotism; specifically, that the agency
employed the niece of her second-level supervisor, within her chain of command.
IAF, Tab 5, Part D at 86-95. The administrative judge found that the appellant
did make a protected disclosure of which certain involved management officials
were aware and that the agency took action against her within such time to
support a finding that it was a contributing factor in her removal, but that the
agency showed by clear and convincing evidence that it would have removed her,
even in the absence of her disclosure. ID at 17-21. On review, the appellant
challenges the administrative judge’s finding that there was no evidence of any
actual motive to retaliate against the appellant on the part of her first-level
supervisor, that individual’s first-line supervisor, or the appellant’s second-level
supervisor. ID at 20-21; PFR File, Tab 1 at 13. The administrative judge found
that the matter of the appellant’s second-line supervisor’s niece’s employment
had been addressed and resolved by the agency in 2010, well before the appellant
raised the matter in her 2012 grievance and that, therefore, her disclosure
would not have raised any new issues or caused the second-level supervisor or
anyone else any particular embarrassment or additional effort. ID at 20. The
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appellant has not challenged this finding, and we agree that it weighs in the
agency’s favor. Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999) (in determining whether the agency has met its clear and
convincing burden, the Board will consider the relevant factors, including (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated).
¶12 The appellant also disputes the administrative judge’s finding as to the third
Carr factor. Specifically, the appellant challenges the administrative judge’s
findings that there was no evidence that the appellant’s second-level supervisor’s
niece made similar mistakes and that the evidence regarding errors made by
another Contracting Specialist was, at best, anecdotal and otherwise insufficient
to establish that he was similarly situated to the appellant. ID at 21; PFR File,
Tab 1 at 24, 19. The appellant references several errors made by her second-level
supervisor’s niece that she pointed out in one of her grievances, IAF, Tab 15,
Part D at 92, and several errors made by the other Contracting Specialist, id.,Part C at 89-95. While it appears that these two individuals did not engage in
protected activity and were not penalized for their performance, there is no
evidence that the errors they committed were as extensive as those the appellant
committed, and, for that reason, we agree with the administrative judge that they
were not similarly situated to her. We further agree, weighing the Carr factors
together, that the agency proved by clear and convincing evidence that it would
have removed the appellant, even absent her protected disclosures.
¶13 Next, the appellant raises a number of alleged adjudicatory errors on the
part of the administrative judge. According to the appellant, her 300-page
prehearing submission somehow became “misaligned” during copying and was
determined by the administrative judge to be in disorder at the prehearing
10
conference, such that he requested that the appellant send another copy directly to
him prior to the hearing, which she did. The appellant argues that the prehearing
conference should have been rescheduled until after the administrative judge had
an opportunity to receive and review the new package. PFR File, Tab 1 at 2. The
record does not reflect that the appellant made such a request during the
prehearing conference or thereafter, within the time allotted by the administrative
judge for submitting exceptions to his summary of the conference. IAF, Tab 18.
The appellant’s failure to complain then precludes her from doing so on review.
See Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7 (2012). In any event, the
administrative judge was able to review the preliminary version of the appellant’s
prehearing submission, which, although in disorder, was sufficient for him to
adequately review the appellant’s claims before the prehearing conference.
¶14 The appellant further argues on review that an Employee Relations
Specialist did not appear to testify at the hearing, even though he “was
specifically named in my appeal for harmful procedural error and neglect which
contributed to my removal from service,” PFR File, Tab 1 at 5, and that she was
denied the opportunity to question him, PFR File, Tab 6. The record reflects that,
although the appellant submitted a number of documents in apparent response to
the administrative judge’s Order and Notice of Hearing and Prehearing
Conference, IAF, Tab 17, she did not furnish a list of witnesses with a detailed
summary of the expected testimony of each, as ordered by the administrative
judge, IAF, Tab 9. The agency did submit such a list, however, and it included
the Employee Relations Specialist as a witness. IAF, Tab 11. The administrative
judge provisionally approved him, “if his testimony becomes necessary,” IAF,
Tab 18, but, during the hearing, the agency decided not to present him as a
witness. First, the appellant did not object to the administrative judge’s summary
of telephonic prehearing conference despite being advised that she could do so,
IAF, Tab 9, and her failure to do so precludes her from raising any such objection
now. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Moreover,
11
because the appellant did not herself request the Employee Relations Specialist as
a witness, she cannot complain when the agency changed its mind about
presenting the testimony of its own witness.
¶15 Finally, the appellant argues on review that the delay in processing the
appeal from the date of the hearing to the issuance of the initial decision was
unfair and should be considered “unacceptable.” PFR File, Tab 1 at 1. Given
that the administrative judge had access to the complete record, including the
appellant’s voluminous submissions and the hearing compact disc, we find that
the appellant has not shown that any delay constituted an adjudicatory error that
prejudiced her substantive rights. Panter, 22 M.S.P.R. at 282.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
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Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
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FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.