Yolanda A. Collins v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YOLANDA A. COLLINS, DOCKET NUMBER
Appellant, DA-0432-14-0224-I-1
v.
DEPARTMENT OF VETERANS DATE: November 26, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Brumsey, Harvey, Louisiana, for the appellant.
Brandi M. Powell, New Orleans, Louisiana, 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 her removal for unacceptable performance under chapter 43. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly modified by this Final Order,
we AFFIRM the initial decision.
¶2 Effective January 17, 2013, the agency removed the appellant from her
position as a Budget Analyst based on her unacceptable performance in Critical
Element 2 of her position. Initial Appeal File (IAF), Tab 16, Subtabs 4b, 4e.
Critical Element 2 concerns the Budget Analysts’ performance standards for
Computer Analysis, Input and Overpayment Reconstruction and Resolution. IAF,
Tab 17, Subtab 4p at 2. Under Critical Element 2, to be fully successful, Budget
Analysts must:
On the basis of the analysis of the overpayment record, make
necessary adjustments, additions, or corrections to the master record
with no more than 5 exceptions. Analyze overpayments in order to
reconstruct the payment record and determine the cause and exact
amount of the debt in 10 days with no more than 20 exceptions.
Accurately and timely process requests for direct deposits and school
certifications within 3 workdays.
Id.
¶3 After the appellant was unsuccessful during her first 90-day performance
improvement plan (PIP) effective September 13, 2012, the agency issued a notice
on April 26, 2013, proposing her removal. IAF, Tab 17, Subtab 4n at 3-5,
Subtab 4j at 2-3. The agency did not act on that proposal. Instead, the agency
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entered into a written agreement on June 6, 2013, to send the appellant to attend
5 days of off-site training in Iowa; to place her on a 90-day PIP after she returned
from training, beginning on June 17, 2013; and to provide her additional training
and biweekly meetings with the Division Chief to provide feedback. IAF,
Tab 17, Subtab 4i at 3.
¶4 On October 23, 2013, the agency notified the appellant that it was
proposing to remove her again because she was unsuccessful in meeting Critical
Element 2 during her second 90-day PIP. IAF, Tab 16, Subtab 4e at 1-2. In its
notice of proposed removal, the agency stated that the parties previously agreed
that the appellant’s performance would be acceptable if 75% of her cases were
financially accurate and she timely returned 75% of her cases within 10 days. Id.
at 1. The agency further stated that, during the relevant period, the appellant
failed to perform successfully on Critical Element 2 because her financial
accuracy was 7% and her timeliness was 33%. Id. at 1-2. After considering the
evidence, including the appellant’s oral and written replies to her proposed
removal, the deciding official sustained the appellant’s removal effective
January 17, 2014. IAF, Tab 16, Subtab 4b at 1.
¶5 The appellant filed a timely appeal of her removal and raised affirmative
defenses alleging harmful error and retaliation for engaging in protected activity.
IAF, Tab 1, Tab 28 at 2. Following a hearing, the administrative judge affirmed
the agency’s decision to remove the appellant for unacceptable performance on
Critical Element 2 of her Budget Analyst position. IAF, Tab 29, Initial Decision
(ID) at 1. The administrative judge further found that the appellant failed to
prove her affirmative defense of reprisal. ID at 14. Specifically, the
administrative judge found that the appellant proved that she engaged in protected
activity by filing a grievance, that the individuals taking the removal action knew
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of her grievance, 2 and that her removal could have been reprisal for protected
activity but that she failed to prove that there was a nexus between her removal
and filing her grievance or engaging in any other protected activity. ID at 12-14.
The administrative judge did not address the appellant’s remaining affirmative
defense of harmful error.
¶6 The appellant has filed a petition for review arguing that the agency failed
to consider certain evidence regarding her retaliation claim. Petition for Review
(PFR) File, Tab 1. She also reasserts her allegation that the agency committed
harmful error by violating the collective bargaining agreement. The agency filed
a response in opposition to her petition. PFR File, Tab 3.
¶7 The failure to demonstrate acceptable performance under a single critical
element will support removal under chapter 43. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 29 n.12 (2013). On review, the appellant does not
challenge the administrative judge’s findings that the agency proved by
substantial evidence 3 that: (1) it communicated to the appellant her performance
standards and the critical elements of her position; (2) its performance standards
were valid; (3) it notified the appellant of her unacceptable performance and
provided her with an opportunity to improve; and (4) the appellant’s performance
in Critical Element 2 was not successful. See id., ¶ 6; see also ID at 3-13. We
therefore AFFIRM those findings.
2
The administrative judge did not find that the proposing and deciding officials were
aware of the appellant’s Board appeal, although both were aware of her grievance. ID
at 13.
3
Substantial evidence is the “degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree.” Towne, 120 M.S.P.R. 239, ¶ 6
(citing 5 C.F.R. § 1201.56(c)(1)). Substantial evidence is a lesser standard of proof
than preponderance of the evidence and, to meet this standard, the agency’s evidence
need not be more persuasive than that of the appellant. Id.
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¶8 Regarding the appellant’s retaliation-for-protected-activity affirmative
defense, the appellant itemizes some of the evidence and arguments she made
below and asserts that the administrative judge did not fully consider all of the
evidence. PFR File, Tab 1 at 5-7; see IAF, Tab 21 at 7, 12, 14, Tab 23 at 5-6.
The administrative judge’s failure to mention all of the evidence of record does
not mean that she did not consider it in reaching his decision. See Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, the appellant has not
identified any new evidence of record indicating that the administrative judge
erred by finding that she failed to prove her claim of retaliation. As such, the
appellant’s arguments on review constitute mere disagreement with the
administrative judge’s explained findings on these issues, and we discern no
reason to reweigh the evidence or substitute our assessment of the record
evidence for that of the administrative judge in this appeal. See ID at 3-15; see
also Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶9 On review, the appellant also reasserts the argument she made on appeal
that the agency committed harmful error by violating the American Federation of
Government Employees (AFGE) contract, Article 27, § 10, ¶¶ A-C, concerning
performance improvement plans. PFR File, Tab 1 at 4; IAF, Tab 12 at 2, Tab 23
at 1-2, Tab 27 at 4-5, 12, Tab 28 at 1-2. Specifically, she argues that the agency
committed harmful error by placing her on a PIP under the same supervisor whom
she previously charged with a “Prohibit [sic] Personnel Action along with
Discrimination and using Retaliation Method in order to remove/fire her.” PFR
File, Tab 1 at 4. The appellant argues, among other things, that her supervisor
wanted her to fail and that her supervisor made up her mind “not to help or
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provide any type of training or corrective action,” which violated her agreement
with the agency regarding the PIP. Id.
¶10 Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
agency’s 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); see 5 C.F.R. § 1201.56(c)(3).
The appellant has the burden of proving by preponderant evidence that the agency
committed an error that harmed her substantive rights. See 5 C.F.R.
§ 1201.56(c)(3). A procedural error that does not prejudice the appellant’s
substantive rights provides no basis to overturn the agency’s action. See
generally Tate v. Department of the Interior, 4 M.S.P.R. 106, 107 (1980).
¶11 Although the administrative judge did not specifically address the
appellant’s harmful error claim in the initial decision, we find that her failure to
do so is not prejudicial error and does not warrant reversing the initial decision.
See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). The
administrative judge properly apprised the appellant of her burden of proving her
affirmative defense of harmful error, as well as the kind of evidence required to
meet her burden. IAF, Tab 24 at 2, Tab 28 at 2. Because the parties had the
opportunity to submit evidence and argument on this issue, we MODIFY the
initial decision to address it here.
¶12 The union agreement that the agency allegedly violated, specifically AFGE
contract, Article 27, § 10, ¶¶ A-C, does not require the agency to reassign the
appellant to a new supervisor during a PIP. See IAF, Tab 27 at 12. We therefore
find no merit in the appellant’s argument that the agency’s failure to assign her to
a different supervisor violated the union contract and constituted harmful error.
See PFR File, Tab 1 at 4. AFGE contract, Article 27, § 10, ¶¶ A-C, requires,
among other things, that the agency afford the employee a reasonable opportunity
of at least 90 calendar days to improve her performance and provide other
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assistance as appropriate, such as training and biweekly feedback. IAF, Tab 27
at 12. In the parties’ June 6, 2013 agreement plan, the agency agreed to provide
the appellant with assistance during her second 90-day PIP, which included
training and biweekly feedback. Id., Tab 17, Subtab 4i at 3.
¶13 On review, the appellant reasserts her argument that the agency did not
provide the agreed-upon training, and she also argues that the administrative
judge misconstrued the testimony of her union representative concerning this
issue. PFR File, Tab 1 at 6; IAF, Tab 28 at 1-2. We find that the administrative
judge accurately summarized the witness’s testimony and evidence confirming,
among other things, that the appellant’s supervisor met with her during the PIP on
a biweekly basis, provided written feedback on her work, and showed her the
steps used to complete previously prepared cases. ID at 6, 9-12; IAF, Tab 16,
Subtab 4g; Hearing Compact Disc (HCD) (testimony of A. Nicholas, A.
Raymond, and the appellant). Contrary to the appellant’s arguments on review,
the record supports the administrative judge’s finding that there is no merit in the
appellant’s claim that she did not receive the requisite training during the PIP.
See HCD (testimony of A. Nicholas, A. Raymond, and the appellant); see also ID
at 12.
¶14 Although the appellant disagrees with the teaching method employed by her
supervisor, she has not proven by preponderant evidence that the training she
received during the PIP violated any agency rule, regulation, or collective
bargaining agreement; or that the alleged procedural violation was harmful and
affected the outcome of the agency’s decision. See generally 5 U.S.C.
§ 7701(c)(2)(A); Diaz v. Department of the Air Force, 63 F.3d 1107, 1109 (Fed.
Cir. 1995); Martin v. Federal Aviation Administration, 795 F.2d 995, 999 (Fed.
Cir. 1986). We therefore MODIFY the initial decision to find that the appellant
failed to prove her affirmative defense of harmful error.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you 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 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.
If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
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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.