Richard Gist v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD ALLEN GIST, DOCKET NUMBER
Appellant, DC-0752-18-0614-I-1
v.
DEPARTMENT OF DEFENSE, DATE: June 12, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Sara K. Achinger , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 5 U.S.C. chapter 75 for unacceptable performance.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to 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. 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. Except as expressly MODIFIED
below regarding the appellant’s defense of harmful procedural error, we AFFIRM
the initial decision.
BACKGROUND
The appellant was a GS-15 Senior Accountant for the agency. Initial
Appeal File (IAF), Tab 1 at 1. His performance year ran from April 1 to
March 31, and, on May 9, 2018, he received his annual performance appraisal,
with a summary rating of “Not Met,” having failed to render successful
performance in the critical elements of “Teamwork” and “Support of Mission.”
IAF, Tab 9 at 4-10. On May 14, 2018, the agency proposed the appellant’s
removal under 5 U.S.C. chapter 75 based on a charge of “Duty Performance at the
‘Not Met’ Level.” IAF, Tab 8 at 15-17. The agency specified that the appellant
“failed to create an overarching financial reconciliation [Standard Operating
Procedure (SOP)] and to monitor reconciliation activity on a regular basis” as he
had been directed to do on May 1, 2017, and he “failed to effectively work well
with others to get the job done.” Id. at 16. After the appellant responded, the
deciding official issued a decision to remove him effective June 16, 2018. IAF,
Tab 4 at 10-14.
3
The appellant filed a Board appeal, challenging his removal on the merits
and raising affirmative defenses of harmful error, race discrimination, disability
discrimination, and retaliation for equal employment opportunity activity. IAF,
Tab 1, Tab 29 at 4-6, Tab 32 at 2-7. After a hearing, the administrative judge
issued an initial decision affirming the appellant’s removal. IAF, Tab 34, Initial
Decision (ID). She found that the agency met its burden of proving the charge
and that the penalty promoted the efficiency of the service. ID at 2-10, 20-22.
She further found that the appellant failed to prove any of his affirmative
defenses. ID at 10-20.
The appellant has filed a petition for review, challenging the administrative
judge’s findings with respect to the charge and his harmful error defense. 2
Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
ANALYSIS
The agency proved its charge.
In her initial decision, the administrative judge summarized the testimony
of several agency witnesses, including the appellant’s first-level supervisor (the
proposing official), who testified that the appellant understood but refused to
carry out his assignment of creating an SOP. ID at 3-4. Other witnesses,
including the Chief of Finance and Accounting, testified that the appellant failed
to attend pertinent meetings and failed to heed their guidance, and instead
criticized their work and questioned their competence. ID at 4-7. The appellant
testified that he did not refuse to create the SOP. He argued that it was
impossible for him to do so because he lacked the necessary background, was not
given sufficient guidance, and was not assigned to develop the SOP until his
November 2, 2017 midyear evaluation. ID at 7-8. The appellant further testified
2
The appellant does not contest the administrative judge’s findings with respect to the
penalty or any of his other affirmative defenses. See 5 C.F.R. § 1201.115 (“The Board
normally will consider only issues raised in a timely filed petition or cross petition for
review.”).
4
that the assignment was vague and confusing, and that he believed it was
improper. Id. Applying the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), including explicit demeanor-based credibility
determinations, the administrative judge found the agency witnesses’ testimony
more credible than the appellant’s. ID at 8-9. She found that developing an SOP
was a proper and appropriate assignment for the appellant, which he should have
been able to accomplish but simply refused to do. ID at 9-10.
On petition for review, the appellant reiterates that the SOP assignment was
poorly communicated and confusing. PFR File, Tab 1 at 6-7. He takes issue with
the notice of proposed removal and its description of the SOP as “overarching.”
PFR File, Tab 1 at 6-7; IAF, Tab 8 at 16. He states that he does not understand
what an “overarching” SOP is supposed to be, and that the agency did not assign
him with developing an “overarching” SOP until shortly before his removal.
PFR File, Tab 1 at 6-7. We find the appellant’s arguments unavailing. Although
March 16, 2018, might have been the first time that the expected SOP was
described as “overarching,” this did not change the nature of the assignment.
IAF, Tab 5 at 13. Rather, it is just another word to describe the task of
developing a system to track “the entire population of reconciliations,” a task for
which the appellant had been responsible since at least April 2017. IAF, Tab 10
at 23.
The appellant also argues that he received inconsistent instructions about
his duties with respect to the reconciliations. 3 Specifically, on April 3, 2017, he
was tasked to “track the status of reconciliations each month for reporting as well
3
The appellant asserts that the agency witnesses provided “inconsistent testimony” on
this and other matters. PFR File, Tab 1 at 6. However, the appellant neither identifies
the specific nature of these alleged inconsistencies nor directs the Board to a particular
place in the hearing recording where they might be found. The appellant’s bare
assertion that some of the testimony was inconsistent fails to provide “sufficient
specificity for the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record.” See Thompson v. Department of the Army,
122 M.S.P.R. 372, ¶ 10 (2015); Tines v. Department of the Air Force, 56 M.S.P.R. 90,
92 (1992).
5
as monitoring,” but, on April 26, 2017, he was told that he was “not currently
tasked to conduct any analysis of the reconciliations.” PFR File, Tab 1 at 6-7;
IAF, Tab 8 at 10. We disagree that the appellant received inconsistent
instructions. Tracking the status of reconciliations was the ultimate goal, but the
Chief of Finance and Accounting explicitly informed the appellant on April 3,
2017, of the step-by-step process for achieving that goal. IAF, Tab 8 at 10. As of
April 26, 2017, the appellant still had not accomplished step 1 (identifying all of
the reconciliations to be tracked), and so the Chief of Finance and Accounting
reminded him to complete this step before moving any further. Id. We see no
inconsistency here.
Similarly, the appellant argues that, for the first time on March 16, 2018,
the Chief of Finance and Accounting requested an “SOP/checklist.” PFR File,
Tab 1 at 7. He expresses confusion over whether the agency wanted an SOP or a
checklist. Id. However, we find this unpersuasive. As clearly communicated to
the appellant at least by August 10, 2017, he was required to develop a standard
checklist based on the requirements that all reconciliations have in common.
IAF, Tab 22 at 12. According to the agency’s Guidance for Preparing Standard
Operating Procedures, to which the appellant was directed no later than
November 3, 2017, a “checklist is not the SOP, but a part of the SOP.” IAF,
Tab 7 at 11, Tab 10 at 6.
On petition for review, the appellant renews his argument that he was not
qualified to create an overall reconciliation SOP. PFR File, Tab 1 at 7. He cites
an email that he wrote his first-level supervisor shortly after his proposed
removal, explaining that he was not a “system accountant,” was unqualified to
write an SOP regarding accounting system interactions, and worked with “output
and evaluation only, not system design, extraction, audit or evaluation.” He
contended that designing such an SOP would require a team approach. IAF,
Tab 6 at 4. Taking the appellant at his word that he lacked the knowledge, skills,
and abilities to create an overall reconciliation SOP on his own, we find that this
6
was not what was being required of him. Rather, he was supposed to collaborate
with the Division of Finance and Accounting—the very team approach that he
claims was required—but he failed to do so effectively. ID at 4-6; IAF,
Tab 9 at 6, 9, Tab 10 at 19, Tab 11 at 4, Tab 22 at 4-5, 7, 12, 15. The appellant
argues that any tensions in his interactions with others arose from his addressing
issues with reconciliations and pointing out that they were not in legal
compliance. PFR File, Tab 1 at 8. To the extent that this is true, it only goes to
show that the appellant was creating these tensions unnecessarily. He was
counseled repeatedly throughout the performance year that he was not supposed
to be analyzing the individual reconciliations but was instead supposed to be
directing his efforts toward systematizing the reconciliations in the aggregate.
ID at 4-6; IAF, Tab 8 at 10-12, Tab 9 at 6, 9, Tab 10 at 19-20, Tab 11 at 4, 7,
Tab 22 at 5, 12. For the reasons explained in the initial decision, we agree with
the administrative judge that the agency proved its charge.
The appellant did not prove his harmful error defense.
To prove an affirmative defense of harmful procedural error, an appellant
must show by preponderant evidence both that the agency committed procedural
error and that the error was harmful. 5 U.S.C. § 7701(c)(2)(A); Parker v. Defense
Logistics Agency, 1 M.S.P.R. 505, 513 (1980); 5 C.F.R. § 1201.56(b)(2)(C).
Harmful error cannot be presumed; an agency error is harmful only where the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681,
685 (1991).
On petition for review, the appellant argues that the administrative judge
erred in denying his affirmative defense of harmful procedural error. PFR File,
Tab 1 at 5-6. He argues that under Department of Defense (DOD) Instruction No.
1400.25, § 3.9.b, DOD Civilian Personnel Management System: Performance
Management and Appraisal Program (Feb. 4, 2016), the agency is required to
7
notify an employee of deficient performance and provide him with an opportunity
to improve, with assistance from his supervisor, before taking any
performance-based action under either 5 U.S.C. chapter 43 or 5 U.S.C.
chapter 75. PFR File, Tab 1 at 5-6; IAF, Tab 29 at 103. He argues that he was
never informed of any performance deficiencies prior to his midyear review in
November 2017, that he was never told that he would be removed if his
performance did not improve, and that he was never placed on a performance
improvement plan (PIP), i.e., an “opportunity to demonstrate acceptable
performance” under 5 C.F.R. § 432.104. PFR File, Tab 1 at 5-6. He contends
that, if the agency had followed the prescribed procedures, he would have
improved his performance and the entire removal action would have been
avoided. Id. at 6.
In her initial decision, the administrative judge found that the agency’s
performance management system relates specifically to performance-based
actions taken against its employees, and because the instant removal action was
taken against the appellant for misconduct as he failed to meet the expectations of
his position because he refused to perform his duties, the agency’s performance
management system was inapplicable. ID at 19-20. She therefore found that the
agency had no obligation to place the appellant on a PIP or follow any chapter 43
procedures before taking disciplinary action against him. ID at 20.
As an initial matter, we disagree with the administrative judge that the
appellant was removed for misconduct. It is well established that an agency may
rely on either chapter 75 or chapter 43 to take a performance -based action.
Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985)
(en banc). 4 The proposal and decision letters definitively establish that the
appellant in this case was removed for performance reasons. IAF, Tab 8 at 15,
4
In its response to the petition for review, the agency appears to endorse the position
that chapter 75 actions are categorically based on misconduct, whereas
performance-based actions are the sole province of chapter 43. PFR File, Tab 3 at 8-9.
The Board does not recognize such a dichotomy. See Lovshin, 767 F.2d at 843.
8
Tab 4 at 10. Furthermore, we agree with the appellant that the agency rule at
issue here applies regardless of whether a performance-based action is taken
under chapter 75 or chapter 43. DOD Instruction No. 1400.25, § 3.9.b explicitly
acknowledges that a performance-based action can be taken under either
authority, and it provides without differentiation that, if an employee’s
performance declines to an unacceptable level, the supervisor must inform him of
the deficiency and provide him assistance to help him improve his performance
during an opportunity period to demonstrate acceptable performance. IAF,
Tab 29 at 103. Although this is not normally required in a chapter 75
performance-based action, see Mealy v. Department of the Navy, 34 M.S.P.R.
187, 190-91 (1987), the agency here has imposed this additional requirement on
itself and is therefore bound to follow it, see Barner v. U.S. Postal Service,
11 M.S.P.R. 357, 359 (1982).
We find that the agency followed its requirements as stated in DOD
Instruction No. 1400.25, § 3.9.b for taking a chapter 75 performance-based
action. As the appellant admits, his supervisor informed him of his performance
deficiencies on November 2, 2017, in his midyear performance evaluation. PFR
File, Tab 1 at 5-6; IAF, Tab 9 at 6. This was 4 months before the agency
proposed the appellant’s removal and provided him ample time to bring his
performance up to standards. See Towne v. Department of the Air Force,
120 M.S.P.R. 239, ¶ 10 (2013) (finding that even a 30-day PIP can offer a
reasonable opportunity to demonstrate acceptable performance in the context of
5 U.S.C. chapter 43). Furthermore, it is undisputed that the appellant’s
supervisor met with him biweekly about the SOP during this time period, thereby
satisfying his obligation to assist the appellant in improving his performance. ID
at 4; IAF, Tab 11 at 6-7, Tab 28 at 10-12. DOD Instruction No. 1400.25,
§ 3.9.b(1) outlines some additional requirements found in the Office of Personnel
Management’s regulations at 5 U.S.C. §§ 432.104, .105, but it makes clear that
these requirements only apply to actions taken under chapter 43. IAF, Tab 29
9
at 103-04. The agency afforded the appellant all of the procedural protections
that this rule requires for performance-based actions under chapter 75. For these
reasons, we find that the appellant has not shown error in the agency’s application
of its rules, and we affirm, as modified, the administrative judge’s finding that the
appellant failed to prove this affirmative defense.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
11
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.