Madeline S. Van Wagenen v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MADELINE S. VAN WAGENEN, DOCKET NUMBER
Appellant, SF-0432-13-0193-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 11, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Alan L. Lescht, Esquire, and Susan L. Kruger, Esquire, Washington, D.C.,
for the appellant.
Kimberly A. Jones, Esquire, Laguna Niguel, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s performance-based removal action. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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
the facts of the case; the 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, and based on the following
points and authorities, 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 was removed from the position of Asylum Officer, GS-0930-
12, U.S. Citizenship and Immigration Services, Department of Homeland
Security, in the Los Angeles Asylum Office (hereinafter “service center”),
effective December 17, 2012. Initial Appeal File (IAF), Tab 1 at 1, 3, Tab 6,
Subtab 4a. The appellant had over 22 years of federal service, 18 of which were
in the position from which she was removed. See IAF, Tab 1 at 1, Tab 6,
Subtab 4b at 1.
¶3 Asylum Officers adjudicate affirmative asylum claims, that is, humanitarian
claims for permanent residence made by aliens who are in the country with or
without legal status. Asylum seekers file claims directly with the agency. See
IAF, Tab 28, Exhibit (Ex.) A at 9; see also Department of Homeland Security,
The Affirmative Asylum Process, http://www.uscis.gov/humanitarian/refugees-
asylum/asylum. The agency’s affirmative asylum process is nonadversarial in
that no government official argues against the application for asylum. IAF,
Tab 28, Ex. A at 11. Generally, applications are granted, recommended for
approval (pending receipt of additional information), denied, or referred to an
3
immigration judge at the U.S. Department of Justice (DOJ) for an adversarial
proceeding. Id. at 13-16.
¶4 Asylum Officers work under tight deadlines imposed by statute. Once an
application is forwarded to an agency service center, the case must be adjudicated
within 180 days. IAF, Tab 29, Ex. 12 at 11-12; see 8 U.S.C. § 1158(d)(5)(A)(iii).
The 180-day processing period is shared by the agency and DOJ’s immigration
judges. IAF, Tab 29, Ex. 12 at 11-12. The agency’s service center must
adjudicate cases within 60 days so that DOJ has 120 days to complete its
adjudicatory process. Id. Thus, Asylum Officers must interview applicants
within 45 days and provide assessments to their supervisors within 4 days of
conducting interviews. Id. at 12; IAF, Tab 6, Subtab 4d at 7.
¶5 In addition to having a brief window for processing, asylum cases can be
factually complex. See IAF, Tab 28, Ex. A at 39-63, Tab 35; see also Hearing
Transcript (HT) at 124-25, 134-35. Processing the cases can be time-consuming
if Asylum Officers thoroughly research the conditions of the countries from
which applicants seek asylum, conduct probing interviews in which they test the
applicants’ stories, and prepare assessments referring cases to DOJ based on
credibility issues. See IAF, Tab 28, Ex. A at 39-63; see also HT at 134-35.
¶6 The appellant argued that, starting in 2000, while she served as chief union
steward, the performance standards for Asylum Officers were unreasonably high
and did not allow sufficient time in which to thoroughly review applications. HT
at 164. She raised this concern to her supervisors and managers over the years, as
well as to Alejandro Mihorkas, the agency’s Director, at a town hall meeting in
February 2011, and to Senator Charles Grassley in September 2011. HT
at 185-86; see IAF, Tab 28, Ex. T. In 2004 and 2005, the appellant complained
that the wife of the Los Angeles service center director, G.M., was serving in his
chain of command. The appellant’s complaint resulted in the wife’s
reassignment. See IAF, Tab 28, Ex. V. The appellant also testified for a
coworker in an equal employment opportunity (EEO) matter involving G.M. in
4
September 2010. IAF, Tab 28 at 18. She filed several formal EEO complaints
over the years as well. Id.
¶7 On November 4, 2011, the appellant received an Employee Performance
Plan and Appraisal Form (PPA) for fiscal year (FY) 2012. IAF, Tab 6, Subtab 4d.
The PPA lists five critical core competencies, which include communication,
customer service, representing the agency, teamwork and cooperation, and
technical proficiency. Id. at 2-3. The PPA also lists six critical performance
goals. Id. at 4-9. Performance goal 4, timely case completion, required the
appellant to submit a written decision and any additional documentation to her
supervisor, and to complete any necessary computer updates, within 4 working
days after conducting an applicant interview. Id. at 7. To achieve performance
expectations, the appellant could not miss the 4-day deadline more than an
average of 4.5 times per pay period. Id. at 8.
¶8 After the agency found that the appellant’s performance was unacceptable
for performance goal 4 and for core competencies 2 through 4 (customer service,
representing the agency, and teamwork and cooperation), she was placed on a
90-day performance improvement plan (PIP) commencing March 26, 2012. IAF,
Tab 6, Subtab 4p. To meet the PIP standard for performance goal 4, the appellant
could fail to timely submit cases no more than an average of 4.5 times per pay
period. Id. at 2. Regarding core competencies 2 through 4, the PIP letter stated
that the appellant would achieve expectations:
when [she] demonstrated by June 29, 2012 that no applicant is sent
home without a decision when they appear for decision pick-up due
to [her] delay in submitting the case. This standard is also met when
no applicant is notified that their decision will not be ready for
pickup due to [her] failure to submit the case timely. Additionally,
this standard is met when no applicants are sent home without an
interview and no cases are reassigned on the date of interview due to
unreasonable delays caused by [the appellant].
Id. at 3. The PIP letter also encouraged the appellant to request any training that
might assist her and specifically suggested relevant training areas, including those
5
that would teach her how to conduct more efficient interviews, write assessments,
manage her time, and organize her work. Id. at 4. In addition, she was instructed
to clear and rearrange her workspace and develop a new method to systematize
her files. Id. Her supervisor, S.U., testified that the appellant’s office was
cluttered and disorganized and that she arranged her work materials without
considering the internal 4-day deadline for submitting cases for review. HT
at 34-35.
¶9 S.U. was detailed to another location from March 26, to May 11, 2012. HT
at 38. Between March 15, 2012, and April 27, 2012, the appellant was supervised
by another team’s supervisor, K.H. HT at 99. K.H. testified that she met with the
appellant at least weekly to discuss her cases and she offered guidance regarding
how to make concise credibility assessments. HT at 104-06. K.H. also removed
150 files from the appellant’s office and instructed her to work only on
newly-assigned cases so that she would not have a backlog while trying to
perform successfully during the PIP. See HT at 105; see also IAF, Tab 6,
Subtab 4j at 3, 15-17.
¶10 Starting in March 2012, all Asylum Officers at the service center received
training regarding “credibility flaws” from P.H., a quality assurance trainer. IAF,
Tab 6, Subtab 4j at 4-12, 14, 18-20, 22-23. The appellant spoke with P.H.
following the training session regarding issues he had discussed and expressed
her disagreement with some of the course content. Id. at 7-8, 10. P.H. responded
that he believed the appellant’s interpretations regarding credibility were
inconsistent with the agency’s headquarters’ credibility lesson plans, and he
instructed her to follow headquarters’ guidance. Id. at 7-8. K.H. also advised the
appellant that, even if she did not agree with the instructions given during
training, the guidance had been vetted by headquarters and she needed to follow
it. HT at 106-07.
¶11 Between March 15, and April 27, 2012, the appellant submitted ten
assessments, only one of which was timely. IAF, Tab 6, Subtab 4n at 4-5; HT
6
at 103. K.H. testified that she corrected and added content to the assessments
without returning them to the appellant because they were already past due. HT
at 102-03. Of the ten assessments, two were a single page in length because the
applicant had not testified, and only four of the assessments addressed the full
merits of the application. HT at 103-04. Nevertheless, K.H. noted, the
appellant’s written products were generally too long. HT at 110.
¶12 On June 28, 2012, S.U. extended the PIP period to August 10, 2012,
because he had been absent for much of the period. He noted, however, that the
appellant’s performance was not yet acceptable. See IAF, Tab 6, Subtab 4o; see
also HT at 36-38. During the remaining PIP period, he observed the appellant as
she conducted three interviews and gave her written and oral feedback regarding
her efficiency and the quality of her work. HT at 48-49. He advised her to adopt
a “template approach” when she prepared written assessments, providing samples
from a highly-productive Asylum Officer at the service center. HT at 51-52. He
also had the appellant observe another Asylum Officer as she interviewed an
applicant. HT at 48-50.
¶13 On August 10, 2012, S.U. informed the appellant that she had failed the
PIP. IAF, Tab 6, Subtab 4g. He rated her performance as unacceptable for core
competencies 2, 3, and 4, and for performance goal 4, yielding an overall rating
of unacceptable for FY 2012. Id., Subtab 4d. The agency proposed the
appellant’s removal. Id., Subtab 4f. The notice of proposed removal stated that
she had averaged seven untimely cases per pay period and submitted timely
assessments for only three of the 77 interviews that she conducted during the PIP
period. Id. at 5. The appellant failed to submit assessments for 27 of the
77 interviews. Id. Regarding her performance in the core competencies, six
applicants whom she interviewed were sent home without a decision when they
appeared for pick-up, and she notified 16 applicants that their decisions would not
be ready for pick-up when originally promised. Id. at 3-4. The appellant was
7
subsequently removed, and she filed this Board appeal. Id., Subtab 4a; IAF,
Tab 1.
¶14 On appeal, the appellant asserted that the agency discriminated against her
based on age 2 and disability (on grounds of both disparate treatment and failure to
accommodate). IAF, Tab 1 at 8-11. She also claimed reprisal for union and EEO
activity and retaliation for making protected disclosures as a
whistleblower. Id. at 3-5, 8-11; IAF, Tab 9. The administrative judge found that
the agency proved by substantial evidence that its performance standards were
valid, realistic, and attainable; the appellant failed to raise her performance to an
acceptable level overall during the PIP; and the agency gave her a reasonable
opportunity to improve. 3 IAF, Tab 41, Initial Decision (ID) at 11-18. She also
found that the appellant did not show by preponderant evidence that the agency
had discriminated against her based on disability. ID at 18-22. She found,
moreover, that the appellant did not show that her removal was in retaliation for
protected whistleblowing activity, ID at 22-28, and she did not establish that the
2
Although the appellant initially listed age discrim ination as one of her affirmative
defense claims, see IAF, Tab 1 at 9-10, her response to the administrative judge’s order
regarding affirmative defenses, see IAF, Tab 8, did not address age discrimination, see
IAF, Tab 9. The administrative judge deemed the claim to have been withdrawn. See
IAF, Tab 30 at 2-3.
3
An agency may remove an employee for unacceptable performance under 5 U.S.C.
§ 4303 on proving by substantial evidence that: (1) the agency had performance
standards that were approved by the Office of Personnel Management; (2) the
appellant’s performance fails to meet the established performance standards in one or
more critical elements of her position; (3) the agency established performance standards
and critical elements and communicated them to the appellant at the beginning of the
performance appraisal period; (4) the agency warned the appellant of the inadequacies
of her performance during the appraisal period and gave her an adequate opportunity to
improve; and (5) after an adequate PIP, the appellant’s performance remained
unacceptable in at least one critical element. See Muff v. Department of Commerce,
117 M.S.P.R. 291, ¶ 5 (2012)). Substantial evidence is that 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).
8
agency acted in retaliation for protected union or EEO activity, ID at 28-30. The
administrative judge thus affirmed her removal. ID at 31.
The appellant’s newly submitted evidence would not change the administrative
judge’s conclusion that the performance standards were valid.
¶15 On review, the appellant has submitted several items that she argues show
that the agency’s performance standards were invalid, including a copy of the
agency’s newly-adopted PPA for Asylum Officers, which has been in use since
December 18, 2013. Petition for Review (PFR) File, Tab 3 at 32-68. She argues
that the agency changed the performance standards for Asylum Officers
approximately 9 months after she was removed and that this change was under
consideration while she was on the PIP. Id. at 6-8. She points out that Asylum
Officers had complained for several years that performance goal 4 made it
difficult to render a thorough assessment of every asylum application. Id. at 6-8,
9-17. She cites a 2008 Government Accountability Office report stating that the
1999 performance standards were adopted without any empirical
evidence. Id. at 5-6. In response to that report, she explains, the agency
commissioned a study of the asylum process, which concluded that each Asylum
Officer’s case load should be reduced by half. Id. at 6. The appellant argues that,
although the changes to the performance standards were still under review during
her PIP, the agency had already committed to adopting more realistic standards
prior to her removal. Id. at 7. The new standards do not contain performance
goal 4 or any other timeliness standard. Under the new standards, she explains,
National Security/Fraud Detection is the highest-rated performance goal, worth
40 percent of the overall rating, and there is no performance goal for timeliness.
Id. at 8; see id. at 35-36. The focus on quality, she asserts, shows that the
standards under which she was removed were invalid. Id. at 9-10. She contends
that the administrative judge thus erroneously concluded that the performance
standards under which she was removed were valid because other Asylum
Officers had been able to meet the standards. Id. at 10-11; see ID at 16.
9
¶16 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant
included five exhibits with her petition for review. PFR File, Tab 3 at 31-68.
Four of the five exhibits indisputably post-date the close of the record and would
meet the Board’s definition of new evidence but only to the extent that they
include information not already in the record. 4 See Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already a part of the record
is not new). Exhibits 2, 3, and 5 pertain to fraudulent applications for asylum.
The appellant put forward considerable evidence on fraud during the hearing,
even adducing the testimony of the agency’s Fraud Detection and National
Security Immigration Officer. See HT at 220-26.
¶17 Moreover, none of the appellant’s submissions pertaining to fraud meet the
Board’s definition of materiality. 5 A party that seeks to submit new evidence on
review must also show that the evidence is material, that is, it is of sufficient
weight to warrant an outcome different from that of the initial decision. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The agency has
4
The hearing ended on June 11, 2013. See IAF, volumes 8-9. The administrative judge
admitted a final exhibit on June 13, 2013, see IAF, Tab 35, though the appellant later
sought to have other items added to the record, see IAF, Tabs 36-39. The
administrative judge also admitted for consideration other exhibits on August 16, 2013,
and October 17, 2013. Exhibit 1, a copy of the PPA implementing the new standards, is
dated December 18, 2013. PFR File, Tab 3 at 32. Exhibits 2, 3, and 5, which pertain to
fraud in the affirmative asylum process, are dated February 11, 2014. I d. at 43, 46, 66.
Exhibit 4, which also pertains to asylum fraud, is dated July 17, 2013. I d. at 55.
5
On November 12, 2014, the appellant’s representative filed a “Motion for Leave to
File Supplemental Brief and Exhib its in Support of Petition for Review.” PFR File,
Tab 9. We DENY the appellant’s motion. The appellant’s motion appears to relate to
the appellant’s claims below regarding fraud, specifically her claim that other Asylum
Officers only successfully performed because they allowed applicants to commit fraud.
As noted herein, the appellant’s prior submissions regarding fraud failed to meet the
Board’s definition of materiality and thus we DENY the appellant’s motion to submit
further sim ilar documentation.
10
never denied that the fraud detection is an important concern, but this appeal
pertains only to the appellant’s performance deficiencies, which the agency
proved by substantial evidence. Shifting the focus to more general concerns
would not change the outcome of the appeal.
¶18 As for Exhibit 1, the PPA in use since December 18, 2013, and the issue of
whether the adoption of new performance standards proves that the standards
under which the appellant was evaluated were invalid, the administrative judge
considered this issue as well. The appellant adduced significant evidence
regarding the timely processing of cases, and the administrative judge knew that
the standards had been criticized and were under revision. See, e.g., IAF,
Tabs 28, 35, 36, 39.
¶19 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria. See 5 U.S.C.
§ 4302(b)(1); see also Guillebeau v. Department of the Navy, 362 F.3d 1329,
1335-36 (Fed. Cir. 2004). They must be reasonable, realistic, attainable, and
clearly stated in writing. Thomas v. Department of Defense, 95 M.S.P.R. 123,
¶ 12 (2003), aff’d, 117 F. App’x 722 (Fed. Cir. 2004). The replacement of
standards is not in itself evidence of their invalidity nor is the fact that
similarly-situated employees testified that the standards were unrealistic. See
Benton v. Department of Labor, 25 M.S.P.R. 430, 434-35 (1984); see also IAF,
Tab 6, Subtab 4b at 8-26, Tab 28, Ex. E at 6-7, Tab 35; HT at 124-28.
¶20 The appellant asserts that the emphasis on quality is somethin g to which she
had long been attuned. PFR File, Tab 3 at 7-8. She argues that she granted less
than one percent of the applications she approved because she was so concerned
about fraud and that testimony from her supervisor and others shows that her
inability to meet performance standards was attributable to the thoroughness of
her interviews and research. Id. at 10-12; see HT at 67-68, 135; see also HT
at 222. The performance standards under which she was evaluated, she asserts,
may have been proper for others, but they did not permit an adequate assessment
11
of her job performance. PFR File, Tab 3 at 10-11; see Williams v. Department of
the Treasury, 35 M.S.P.R. 432, 435 n.6 (1987) (finding that the fact that all
employees were evaluated under the same standard, and that other employees in
the unit were able to meet that standard, does not establish that the standard
permitted the accurate evaluation of job performance).
¶21 We reject the notion that the standards were invalid. The case upon which
the appellant relies, Williams, is distinguishable because in that case the Board
found that the methodology for measuring productivity was defective because it
failed to capture significant nonquantifiable duties that were assigned to
employees. See Williams, 35 M.S.P.R. at 434-37; see also PFR File, Tab 3
at 10-11. The appellant does not argue that the agency’s methodology for
measuring timeliness is invalid; instead, she asserts that the standard should not
apply in her case. The appellant also fails to account for the flexibility inherent
in the standard to accommodate the more difficult cases. Although performance
goal 4 required Asylum Officers to submit completed cases to their supervisors
within 4 working days after applicant interviews, they were allowed to submit
cases after the deadline up to 4.5 times per pay period, that is, for 25 percent of
the maximum number of interviews assigned to an officer during a pay period. 6
IAF, Tab 6, Subtab 4d at 6-8; see HT at 132-33, 157. Moreover, as the
appellant’s supervisor testified, she would have had additional time to pursue
suspected fraud while her assessments were under review after the 4-day deadline
passed. HT at 32-33. The appellant essentially contends that the agency’s
standards were invalid because they did not allow her to process cases as she
wanted to process them. Although her concerns about fraud seem well-placed,
she was nevertheless obligated to perform her job according to the performance
standards in force at the time.
6
Asylum Officers were assigned a maximum of 18 interviews per pay period. See IAF,
Tab 6, Subtab 4d at 6; see also HT at 132-33, 157.
12
¶22 The appellant additionally asserts that the agency official who testified that
most Asylum Officers met the standard failed to substantiate whether all officers
whose performance was deemed acceptable or better were rated based on accurate
statistics. PFR File, Tab 3 at 10; see IAF, Tab 29 at 6; see also HT at 13-16. She
cites the testimony of C.W., a former Asylum Officer who averred that she never
received an unacceptable rating even though she knew she did not meet the
timeliness standard. See HT at 126. Even if the agency’s ratings are
unsubstantiated, however, the appellant’s claims are equally so, as the former
Asylum Officer offered no concrete evidence to support her claim that she had
failed to meet performance goal 4.
¶23 Finally, we note that the appellant was removed for unacceptable ratings on
three additional performance standards, the core competencies related to customer
service, representing the agency, and teamwork and cooperation. IAF, Tab 6,
Subtab 4f at 1. Those standards are still in place. Compare IAF, Tab 6,
Subtab 4d at 2-3, with PFR File, Tab 3 at 33. For all of these reasons, the
appellant’s arguments related to the validity of the performance standards are thus
unavailing.
The appellant was given adequate opportunity to improve her performance.
¶24 The appellant argues that the administrative judge erred when she
concluded that the agency gave her sufficient opportunity to improve her
performance. PFR File, Tab 3 at 17-23. She asserts that she was supervised by
three different supervisors during the PIP period, none of whom offered adequate
guidance or training regarding how to improve on timeliness without
compromising quality. Id. at 17-20. Again, her argument essentially rests on the
premise that she could not follow her own priorities if she followed those of the
agency. Although she reported to three different supervisors (one only briefly)
during the PIP, the period was extended to cover the time that her primary
supervisor was unavailable. See IAF, Tab 6, Subtab 4o. The record also shows
13
that she received formal instruction regarding credibility assessments and
interviewing techniques, though she took issue with much of what the trainer
said. See id., Subtab 4j at 4-12, 14, 18-20, 22-23; see also HT at 106-07.
¶25 The appellant contends that the agency failed to adjust the timeliness
standard to account for her preparation time for interviews that applicants
canceled during the PIP. PFR File, Tab 3 at 20-21. Her supervisor testified,
however, that the agency considered preparation time when evaluating her overall
productivity, but the cancelled interviews did not affect her evaluation under
performance goal 4 because no assessments would have been due for interviews
that had not been conducted. HT at 75, 80-81.
¶26 The appellant also contends that the PIP requirements were so rigid that she
did not have a reasonable chance of meeting them. PFR File, Tab 3 at 21-22. She
argues that the PIP required her to submit timely assessments for every interview
she conducted, whereas other similarly-situated Asylum Officers did not work
under the same standard. Id. at 21. She additionally argues that the agency
should have afforded her a reasonable period of time during which to attain the
required level of timeliness and considered that she was using a significant
amount of leave for medical reasons. Id. at 21-22. The appellant’s PIP, however,
allowed 4.5 untimely submissions per pay period, and thus was no more stringent
than the standard under which she had worked for years. Compare IAF, Tab 6,
Subtab 4p at 2-3, with id., Subtab 4d at 2-3. As for leave granted to accommodate
her medical condition, the agency was not obligated to excuse her from meeting
the performance standards for her position. See Henry v. Department of Veterans
Affairs, 100 M.S.P.R. 124, ¶ 10 (2005) (an agency is not obligated to restructure a
position if doing so would entail the removal of the essential functions of the
position). For all of these reasons, the appellant’s argument, that the agency did
not give her an adequate opportunity to improve, is unavailing.
14
The appellant failed to preserve her objections to the inclusion of certain
testimony.
¶27 The appellant asserts that the administrative judge should have excluded
agency testimony regarding the quality of her credibility assessments because
such testimony was irrelevant to the reasons for which she was removed. PFR
File, Tab 3 at 22-23. The appellant, however, did not object at the hearing to the
testimony of H.G., the agency manager who supervised her after the PIP ended, or
to the testimony of her other PIP supervisors. She cannot do so now. See Hill v.
Department of Health & Human Services, 28 M.S.P.R. 91, 92-93 (1985), (an
employee’s failure to object at hearing to introduction of allegedly irrelevant
evidence precluded her from doing so on review), aff’d, 795 F.2d 1011 (Fed. Cir.
1986) (Table).
The appellant failed to establish her affirmative defenses by preponderant
evidence.
¶28 The appellant’s remaining arguments pertain to her affirmative defenses, for
which she bore the burden of proving by preponderant evidence. See 5 C.F.R.
§ 1201.56(a)(2)(iii). She argues that the administrative judge improperly found
that the agency did not discriminate against her based on disability when she
concluded that the medical evidence she offered in support of her request for a
compressed work schedule did not establish her need for such an accommodation.
PFR File, Tab 3 at 24-25; see ID at 18-22. She also asserts that the agency
refused to extend to her a reasonable accommodation because of her performance
issues and not for inadequate medical documentation. PFR File, Tab 3 at 24; see
IAF, Tab 28, Ex. Q. She argues that the agency discriminated against her because
management knew that she would never be able to improve her performance on
timeliness because she focused her efforts on credibility determinations. PFR
File, Tab 3 at 24-25.
¶29 An employee is entitled to a reasonable accommodation but not necessarily
the specific accommodation she chooses. See Miller v. Department of the
Army, 121 M.S.P.R. 189, ¶ 15 (2014). Although the agency denied the
15
appellant’s request to continue working four 10-hour days per week because she
had performance problems while working that schedule, IAF, Tab 28, Ex. Q, it
still allowed her flexible beginning and ending times and granted her leave
requests, see id. at 2; see also IAF, Tab 29, Exs. 8, 10.
¶30 The appellant also argues that the agency failed to meet its burden to show
by clear and convincing evidence that it would have removed her in the absence
of her whistleblowing activities. 7 PFR File, Tab 3 at 25-28. In determining
whether the agency met its evidentiary burden, the Board considers: the strength
of the agency’s evidence in support of its personnel action; the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999). The administrative judge found that the agency presented no evidence
regarding nonwhistleblower employees who were placed on a PIP or failed to
achieve acceptable ratings but were not removed. However, she found that the
agency presented adequate evidence regarding the first and second Carr factors.
ID at 26-28.
¶31 The appellant argues that the Board should reject the administrative judge’s
findings regarding the first Carr factor—the strength of the agency’s evidence in
support of its personnel action—because the agency failed to meet its burden of
proof on the merits of the removal action. PFR File, Tab 3 at 26. These issues
are addressed above where we found that the agency’s removal action was proper.
7
The administrative judge found that the appellant had made protected disclosures of
actions that she reasonably believed evidenced a violation of a law, rule, or regu lation,
namely, the fact that G.M.’s wife was serving in his chain of command. ID at 24-25.
She likewise found that the appellant made protected disclosures regard ing the rushed
conditions under which Asylum Officers were required to work. ID at 24. She
additionally found that the appellant’s protected disclosures were a contributing factor
in her removal. ID at 25.
16
She also argues that the administrative judge erred in her analysis of the second
Carr factor, the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the removal decision. Id. at 26-27. The
administrative judge found that the proposing and deciding officials, D.R. and
T.K., had motive to retaliate against the appellant because her protected
disclosures generally implicated their conduct and decisions. 8 She also found that
these officials did not seem to be influenced by the agency official with the
strongest motive to retaliate, G.M. ID at 26-27. The record showed that D.R.
declined to place the appellant on a PIP after she received an unacceptable rating
for FY 2011 because the agency’s performance plan had undergone significant
changes prior to that year. HT at 89. Additionally, D.R. willingly replaced G.M.,
who was initially named deciding official, after the appellant requested that
another manager serve in that position. See IAF, Tab 6, Subtab 4c at 2, 4,
Subtab 4f; see also HT at 227-28. In any event, as the administrative judge
noted, the agency’s evidence regarding her performance difficulties is
overwhelming, and any evidence that might suggest retaliation is weak by
comparison. See ID at 28.
¶32 Finally, the appellant argues that administrative judge improperly found
that the agency did not retaliate against her for union and EEO activities. PFR
File, Tab 3 at 28-29. The administrative judge concluded that the appellant
provided no evidence substantiating her assertion that the agency treated
employees who did not engage in protected activities more favorably than she
was treated. ID at 30. On review, the appellant points to the testimony of C.W.,
8
Comments that are highly critical of agency management may reflect poorly on all
agency managers. See Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 23
(2010). Thus, the fact that an agency official is outside of the whistleblower’s chain of
command, not directly involved in alleged retaliatory actions, and not personally named
in the wh istleblower’s disclosure does not elim inate the possibility that such ind ividual
may harbor a retaliatory motive or exert a retaliatory influence on the whistleblower’s
treatment. See Whitmore v. Department of Labor, 680 F.3d 1353, 1371 (Fed. Cir.
2012).
17
a former Asylum Officer who did not engage in union or EEO activities. PFR
File, Tab 3 at 28. C.W. testified that she failed to meet the timeliness standard,
but was never rated unsatisfactory. HT at 126. The appellant also identified
other Asylum Officers who did not engage in union or EEO activities and who,
she asserted, either maintained comparable case backlogs or required medical
accommodations, but were not placed on PIPs. PFR File, Tab 3 at 28-29; see
IAF, Tab 28, Ex. N; see also IAF, Tab 6, Subtab 4b at 8-12.
¶33 Where, as here, the parties have presented their evidence regarding the
retaliation issues, the ultimate question is whether the appellant has shown by
preponderant evidence that the agency’s proffered reason for taking action against
her was not the actual reason for the action and that the agency intentionally
retaliated against her. See Marshall v. Department of Veterans
Affairs, 111 M.S.P.R. 5, ¶¶ 16-17 (2008). The evidence considered at this stage
may include: (1) the elements of the prima facie case; 9 (2) any evidence the
appellant presents to attack the agency’s proffered explanations for its actions;
and (3) any further evidence of retaliation that may be available to the appellant,
such as independent evidence of discriminatory statements or attitudes on the part
of the agency, or any contrary evidence that may be available to the agency, such
as a strong track record in equal opportunity employment. Id., ¶ 17. The Board
may consider circumstantial evidence in determining whether an appellant has
met her burden; however, to establish retaliation using circumstantial evidence,
the appellant must show that the accused official knew of the protected activity,
and provide evidence showing a “convincing mosaic” of retaliation against
her. Id., ¶ 18.
9
To establish a prima facie case of retaliation, an appellant must show that: (1) he
engaged in a statutorily protected activity; (2) he suffered a materially adverse action
by the agency; and (3) a causal connection existed between the two. Marshall,
111 M.S.P.R. 5, ¶ 14. The elements for proving a prima case of retaliation for union
activity are the same. I d., ¶ 15. Marshall addresses within the same analytical
framework both forms of retaliation alleged here. See id., ¶¶ 16-26.
 18
¶34 Although the appellant documented a history of union and EEO activity and
other disagreements wherein G.M. expressed strong anti-union sentiment, she put
forward no evidence to suggest that S.U., D.R, or T.K. showed anti-union animus.
See IAF, Tab 9 at 8. She likewise did not provide any significant and persuasive
evidence that employees without union or EEO activity were treated more
favorably than she was treated, that the agency’s stated reasons for taking the
removal action were pretextual, or that any agency official made statements that
would call into question the agency’s stated reasons for her removal or reveal
retaliatory animus against her. Accordingly, her arguments regarding
discrimination and retaliation are unavailing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
19
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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. 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 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
20
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. 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.
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 United States 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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
21
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.