Daniel v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3291
MICHAEL D. DANIEL,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Joseph T. Mallon, Jr., Mallon and McCool, LLC, of Baltimore, Maryland, argued
for petitioner.
Ronald G. Morgan, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Mark A. Melnick, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3291
MICHAEL D. DANIEL,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
___________________________
DECIDED: May 11, 2007
___________________________
Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
Michael D. Daniel seeks review of the final decision of the Merit Systems
Protection Board, Docket No. PH-0432-05-0280-I-2, in which the Board affirmed his
removal for unacceptable performance. We affirm.
BACKGROUND
In December 2002, the Department of Veterans Affairs (“DVA”) selected Mr.
Daniel for a GS-13 position entitled Chief, Consumer Relations Service. His supervisor
was Kathy Lockhart, Associate Director of Operations for the VA Maryland Healthcare
System. At the end of Mr. Daniel’s probationary period, Ms. Lockhart felt that his
performance was unsatisfactory. She concluded, however, that he should be retained
to allow him to “address deficiencies and demonstrate fully successful performance
during a Performance Improvement Plan (PIP).” Accordingly, on November 14, 2003,
Mr. Daniel was placed on a PIP for 90 days. During that 90-day period, Ms. Lockhart
conducted weekly meetings with Mr. Daniel, gave him extensive feedback on his work,
and was generally available in person, by telephone, or by email. At the end of that
period, Ms. Lockhart remained convinced that Mr. Daniel’s performance was
unsatisfactory. She was concerned, however, that she had not provided Mr. Daniel
enough autonomy in light of his GS level and management position. She therefore
extended the PIP to allow Mr. Daniel to “fly on his own.” Ms. Lockhart remained
available to Mr. Daniel, but she no longer conducted weekly meetings with him.
Because Mr. Daniel took a lengthy period of sick leave in early 2004, the PIP was
further extended. After the conclusion of the PIP, Ms. Lockhart decided that Mr. Daniel
was still not performing satisfactorily. Ms. Lockhart therefore recommended his
removal, and Mr. Daniel was removed for unacceptable performance as of February 4,
2005. Mr. Daniel appealed his removal to the Board.
Following a four-day evidentiary hearing, the administrative judge who was
assigned to the case issued an initial decision upholding Mr. Daniel’s removal. The
administrative judge found that Mr. Daniel “failed to meet [the] critical element of
resource management in his performance standards,” despite having a “very real
opportunity to improve his performance.” When the full Board denied Mr. Daniel’s
petition for review, the initial decision became the final decision of the Board.
2006-3291 2
DISCUSSION
Mr. Daniel argues that he was wrongfully removed because he completed every
task assigned to him in an acceptable manner. Alternatively, he argues that even if he
was not performing satisfactorily, he still should not have been removed because he
was not given a reasonable opportunity to demonstrate acceptable performance.
1. As defined by Mr. Daniel’s PIP, the critical element of resource management
had two subsidiary standards: “Ensures competency of the [staff] to perform their jobs”
and “Ensures allocated resources are used efficiently within the assigned budget.” The
Board found that Mr. Daniel failed the first standard because he did not satisfactorily
update the position descriptions for several positions for which he was responsible,
despite being told that he was required to perform that task in order to satisfy the first
standard. The Board specifically listed the positions that had not been updated. Mr.
Daniel points to evidence that he updated several position descriptions. That evidence,
however, does not undermine the Board’s finding that, despite Ms. Lockhart’s
conducting “an in-depth edit” of one of the position descriptions identified by the Board
and supplying Mr. Daniel with written information regarding another of the identified
positions, Mr. Daniel failed to satisfactorily complete those position description
assignments. Accordingly, Mr. Daniel has not shown that the Board was wrong in
concluding that he failed to satisfy the first standard.
The Board also found that Mr. Daniel failed to satisfy the second standard. As
support for that finding, the Board noted that Mr. Daniel (1) failed to establish a patient
escort service, despite being given a budget specifically for that purpose, (2) failed to
provide continuous coverage for an information desk as required, and (3) failed to hire a
2006-3291 3
Lead Patient Representative, thus wasting resources by requiring others to perform
those functions in addition to their own job responsibilities. Although Mr. Daniel alleges
that there was good reason for his failure to fill the Lead Patient Representative
position, he does not address the other two bases for the Board’s ruling. As such, Mr.
Daniel has not shown the Board’s finding as to the second standard to be in error. The
Board’s conclusion that Mr. Daniel’s work was unsatisfactory therefore must be
affirmed.
2. Mr. Daniel also argues that the DVA did not give him a “reasonable
opportunity to demonstrate acceptable performance,” as is required by 5 U.S.C.
§ 4302(b)(6). See Martin v. Fed. Aviation Admin., 795 F.2d 995, 997 (Fed. Cir. 1986).
The Board found otherwise, holding that Mr. Daniel was afforded sufficient time to
improve and was given sufficient assistance. The Board found that Ms. Lockhart
provided him with extensive personal feedback on his work and was available to him in
person, by telephone, or by email. That conclusion is supported by substantial
evidence in the form of the testimony, documents, and emails referred to in the Board’s
opinion.
Mr. Daniel’s primary argument on this issue is that Ms. Lockhart was unaware
that he was performing satisfactorily because she was not in the office for much of the
final two months of his PIP. That argument is unpersuasive because, as noted above,
the evidence shows that Mr. Daniel did not perform his duties satisfactorily. With
respect to Mr. Daniel’s argument that some other agency official should have been
given responsibility for supervising his PIP during those months, the testimony at the
hearing indicated that, pursuant to agency policy, Ms. Lockhart continued to serve as
2006-3291 4
his immediate supervisor during that period. The evidence further supports the Board’s
conclusion that Ms. Lockhart was available to Mr. Daniel by telephone, email, or, when
she was in the office, in person. There was therefore no need to assign another
supervisor.
Mr. Daniel next argues that he was improperly assigned additional tasks when
his PIP was extended. However, he has not alleged that those tasks were outside his
job responsibility or that he was afforded insufficient time to complete all the tasks
assigned to him. Accordingly, he has not shown that the new tasks denied him the
ability to demonstrate acceptable performance.
Mr. Daniel notes that the agency denied his general request for formal training
and argues that doing so was contrary to agency policy. At the Board hearing, a DVA
human resources specialist testified that she would generally expect an employee on a
PIP to bring up any training that he or she felt was needed. The specialist agreed that if
an employee expressed a general desire for training, it would normally be appropriate
for the supervisor to follow up with the employee regarding what specific training the
employee desired. That testimony falls short of demonstrating that the DVA had a
policy requiring a supervisor to recommend training opportunities in response to a
general request for training. Nor was there any other testimony or written evidence of
any DVA policy or general practice of that nature.
Mr. Daniel next argues that there was a period of almost two months following
the first extension of his PIP during which Ms. Lockhart did not meet with him. Mr.
Daniel does not indicate how the lack of in-person meetings prejudiced him, however,
nor does he contend that he sought meetings with Ms. Lockhart during that period.
2006-3291 5
Additionally, Mr. Daniel was granted an extension on his PIP in part to provide him with
more autonomy. Ms. Lockhart’s decision not to meet with him regularly is consistent
with that purpose.
Finally, Mr. Daniel argues that Ms. Lockhart prejudged him and “had no intention
of providing him with a reasonable opportunity to demonstrate acceptable performance.”
As support for that proposition, he first claims that Ms. Lockhart was “prepared” to
remove him at the end of the first 90 days of his PIP. While that is undoubtedly true,
considering that she rated his performance as unacceptable at that time, it does not
demonstrate that she prejudged him. As pointed out by the Board, the DVA could have
removed Mr. Daniel at the end of his probationary period or after the initial term of his
PIP. Placing Mr. Daniel on a PIP and later extending it could only work in Mr. Daniel’s
favor. Such actions indicate, if anything, that Ms. Lockhart was interested in giving Mr.
Daniel a further opportunity to demonstrate acceptable performance. Mr. Daniel also
argues that, sometime before June 2004, Ms. Lockhart indicated to her assistant that
she “intended” to remove him. The testimony cited in support of that proposition,
however, indicates only that Ms. Lockhart noted Mr. Daniel’s lack of progress and that
Ms. Lockhart anticipated the need to remove him. That evidence does not show that
Ms. Lockhart denied Mr. Daniel a reasonable opportunity to demonstrate acceptable
performance. Regardless of Ms. Lockhart’s expectations, the evidence showed that Mr.
Daniel failed to perform satisfactorily after being given a reasonable opportunity to do
so.
In sum, because substantial evidence supports the Board’s decision, we affirm
the decision sustaining the DVA’s removal action.
2006-3291 6