Thomas Shu v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS K. SHU, DOCKET NUMBER
Appellant, NY-0752-10-0190-I-4
v.
DEPARTMENT OF THE TREASURY, DATE: June 27, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas K. Shu, New York, New York, pro se.
Alison K. Sablick, Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: 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 the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 an y 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
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 out come 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was formerly employed by the agency as an Internal Revenue
Agent in the Tax Exempt and Government Entities Division of the Internal
Revenue Service. Shu v. Department of the Treasury, MSPB Docket No. NY-
0752-10-0190-I-1, Initial Appeal File (I-1 IAF), Tab 5, Subtab 4(b). Effective
April 16, 2010, the agency removed him, pursuant to chapter 75 of Title 5, for
unacceptable performance based on 22 specifications. Id., Subtabs 4(c), (f).
¶3 The appellant’s job performance was evaluated based on his performance in
five critical job elements (CJE), which included: (1) Employee
Satisfaction-Employee Contribution; (2) Customer Satisfaction-Knowledge;
(3) Customer Satisfaction-Application; (4) Business Results-Quality; and
(5) Business Results-Efficiency. I-1 IAF, Tab 10 at 2. Each CJE contained three
performance aspects. Id. A rating of unacceptable for a CJE was based on the
appellant failing two or more performance aspects within that CJE. Id.Specifications 1-7 in the agency’s proposal notice set forth examples of the
appellant’s unacceptable performance regarding CJE No. 2 (Customer
Satisfaction-Knowledge). I-1 IAF, Tab 5, Subtab 4(f) at 1-6. Specifications 8-13
set forth examples of the appellant’s unacceptable performance regarding CJ E
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No. 3 (Customer Satisfaction-Application). Id. at 6-9. Specifications 14-16 set
forth examples of the appellant’s unacceptable performance regard ing CJE No. 4
(Business Results-Quality). Id. at 9-11. Specifications 17-22 set forth examples
of the appellant’s unacceptable performance in CJE No. 5 (Business
Results-Efficiency). Id. at 11-14.
¶4 After holding a hearing, the administrative judge issued an initial decision ,
affirming the appellant’s removal. Shu v. Department of the Treasury, MSPB
Docket No. NY-0752-10-0190-I-4, Appeal File, Tab 7, Initial Decision (ID). He
found that the agency proved by preponderant evidence that the appellant’s
performance was unacceptable in CJE No. 3, Customer Satisfaction-Application
based on the appellant’s failure to meet performance aspects 3B and 3C. ID
at 43-44. The administrative judge sustained specifications 8-10, which
established that the appellant’s performance was deficient in performan ce aspect
3B (Customer Relations) because he failed to provide information to customers
that was complete, understandable, and presented in a logical manner, and his
supervisor received complaints from taxpayers that he made strange and
confusing statements, and treated them in a disrespectful and unprofessional
manner. ID at 24-27.
¶5 The administrative judge also sustained specifications 12-13, 2 which
established that the appellant’s performance was deficient in performance aspect
3C (Written Communication) because he failed to prepare written work that was
sufficiently detailed, easy to follow, and clearly reflected t asks taken when he
cited to a revenue ruling that did not appear applicable to the taxpayer without
providing any explanation and failed to include a description of his work
activities in the case chronology record, despite charging time to a case. ID
at 29-32.
2
The administrative judge sustained specification 13 in part, finding that the agency’s
charge that a fax was missing from one of the appellant’s case files did not evidence a
failure to meet any of the standards outlined in performan ce aspect 3C. ID at 31-32.
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¶6 The administrative judge found that the agency’s standards provided for an
accurate and reasonable measurement of the appellant’s performance. ID at 26,
31. The administrative judge further found that the penalty of removal was
reasonable and promoted the efficiency of the service. ID at 44, 47-50. Finally,
he found that the appellant failed to prove his affirmative defense of denial of
reasonable accommodation because the record reflected that the agency granted
the appellant’s requests for accommodation and, in any event, the appellant failed
to show that any of the sustained instances of unacceptable performance were a
direct result of his disabilities. ID at 44-47.
¶7 The appellant has filed a petition for review. Shu v. Department of the
Treasury, MSPB Docket No. NY-0752-10-0190-I-4, Petition for Review
(I-4 PFR) File, Tab 1. The agency has opposed the appellant’s petition. I-4 PFR
File, Tab 3. The appellant has filed a reply. I-4 PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 A petition for review must contain sufficient specificity for the Board to
ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92
(1992). Under the Board’s regulations, a petition for review must identify
specific evidence in the record demonstrating any alleged erroneous findings of
material fact and explain why the challenged factual determinations are incorrect.
5 C.F.R. § 1201.115(a).
¶9 Although the appellant was represented below, I-1 IAF, Tab 1, he has filed
his petition for review pro se. Pro se filings are to be construed liberally. Harper
v. Office of Personnel Management, 116 M.S.P.R. 309, ¶ 9 (2011). However,
even with a liberal reading of the appellant’s petition for review, we are unable to
discern any specific challenges to the administrative judge’s findings concerning
the agency’s proof of its charge of unacceptable performance or the appellant’s
failure to prove his affirmative defense. Accordingly, we will not undertake a
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full review of the record. See, e.g., Baney v. Department of Justice, 109 M.S.P.R.
242, ¶ 7 (2008); Tines, 56 M.S.P.R. at 92.
¶10 However, we will address the appellant’s arguments concerning procedural
and adjudicatory error. First, the appellant contests the overall length of the case.
I-4 PFR File, Tab 1 at 3, 5, 24. He contends that the administrative judge
improperly determined that he was not competent to prosecute his case and
opened and closed the case to intimidate him. Id. at 2, 4, 9, 17, 23. Such
arguments are unavailing. The record reflects that the appeal was dismissed
without prejudice on two occasions based on concerns raised by the appellant’s
counsel concerning the appellant’s mental condition. 3 I-1 IAF, Tabs 27, 29; Shu
v. Department of the Treasury, MSPB Docket No. NY-0752-10-0190-I-2, Appeal
File, Tabs 4-5. An administrative judge has wide discretion to dismiss an appeal
without prejudice in the interests of fairness, due process, and administrative
efficiency, and may order such a dismissal at the request of one or b oth parties, or
to avoid a lengthy or indefinite continuance. Thomas v. Department of the
Treasury, 115 M.S.P.R. 224, ¶ 7 (2010). We find that the appellant’s assertions
on review fail to demonstrate that the administrative judge abus ed that
considerable discretion. Rather, the record supports the administrative judge’s
reasons for dismissing the appeal without prejudice. 4
3
Although the appellant contends that his attorney did not inform the administrative
judge of concerns regarding the appellant’s competency, I-4 PFR File, Tab 1 at 2, 17,
23, the record includes correspondence from the appellant’s attorney indicating as
much, I-1 IAF, Tab 27.
4
The appeal also was previously dismissed without prejudice on June 16, 2016 , because
the parties agreed to engage in settlement discussions after it was discovered that a
portion of testimony had been lost due to technical difficulties and would potentially
need to be retaken. Shu v. Department of the Treasury, MSPB Docket No. NY-0752-
10-0190-I-3, Appeal File, Tab 27. On petition for review, the Board found that the
administrative judge did not abuse his discretion in dismissing the appeal without
prejudice. Shu v. Department of the Treasury, MSPB Docket No. NY-0752-10-0190-
I-3, Final Order, ¶¶ 2, 4 (Sept. 15, 2016).
6
¶11 Next, the appellant contends that the judicial process was “nothing but
acting for the defendants.” I-4 PFR File, Tab 1 at 26. He also contends that the
administrative judge was the alter ego of his former supervisor, among others,
and acted to shield her. Id. at 5, 13-14, 23-25. To the extent the appellant is
arguing that the administrative judge was biased against him, we find that his
bare assertions do not establish a deep-seated antagonism toward him that would
make fair judgment impossible and do not overcome the presumption of honesty
and integrity accorded to administrative judges. See Bieber v. Department of the
Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002); Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant also contends that the
administrative judge’s efforts to encourage settlement were improper and protests
that the proposed settlement amount remained unchanged over the course of
6 years. I-4 PFR File, Tab 1 at 24, 26-27. However, there is nothing improper in
an administrative judge encouraging the parties to enter into a settlement
agreement. See Bell v. Department of the Army, 78 M.S.P.R. 685, ¶ 6 (1998);
Busen v. Office of Personnel Management, 49 M.S.P.R. 37, 42-43 (1991).
¶12 Finally, we reject the appellant’s contentions on review that he was denied a
hearing and/or certain witnesses. Regarding the appellant’s apparent contention
that he was denied a hearing, I-4 PFR File, Tab 1 at 16, 26, the record reflects
that testimony was heard on January 6, 2011, and April 17, 2014. I-1 IAF,
Tab 29; Shu v. Department of the Treasury, MSPB Docket No. NY-0752-10-
0190-I-3, Appeal File, Tab 15. The appellant appears to argue that the
administrative judge denied his request to call two of his requested witnesses. I-4
PFR File, Tab 1 at 10, 12, 25. However, the record reflects that one of those
witnesses, who is a doctor, testified at the hearing and the administrative judge
considered this doctor’s testimony in making his findings. ID at 46. Further, the
appellant has not identified, and we are unable to locate in the record, any request
to call the other individual as a witness. Finally, we reject the appellant’s
contention that the initial decision, which contains 55 pages of detailed analysis,
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is incomplete and fails to adequately set forth the reasoning behind the
administrative judge’s conclusions. I-4 PFR File, Tab 1 at 27, 30.
¶13 Accordingly, we conclude that the appellant’s arguments do not provide a
basis for disturbing the initial decision.
NOTICE OF APPEAL RIGHTS 5
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.
8
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 visi t 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 t hat 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
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
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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
(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
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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.
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
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.
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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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.