Novitsky v. Department of Justice , 429 F. App'x 977 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LYNN NOVITSKY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2011-3023
__________________________
Petition for review an arbitrator’s decision in FMCS
Case No. 09-53595 by Charles H. Pernal, Jr.
____________________________
Decided: June 28, 2011
____________________________
LYNN NOVITSKY, Summerfield, Florida, pro se.
AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN,
Assistant Director.
__________________________
NOVITSKY v. JUSTICE 2
Before LOURIE, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
Lynn Novitsky petitions for review of the arbitrator’s
decision upholding her removal from employment by the
Department of Justice, United States Marshal Service
(“USMS” or “the Agency”). Because substantial evidence
supports the arbitrator’s decision and there were no
errors of law, we affirm.
BACKGROUND
Novitsky was employed as an administrative support
assistant—criminal clerk in the USMS District of Colo-
rado office in Denver, Colorado. Novitsky’s job involved
entering and maintaining data relating to the movement
of prisoners in the custody of the USMS in a computer
program known as the Prisoner Tracking System (“PTS”).
After the Agency hired her in April 2007, Novitsky at-
tended a two-day training session at the Federal Law
Enforcement Training Center in Brunswick, Georgia, on
how to use the PTS. Novitsky also received an additional
week and a half of on-site PTS training. Despite the
training, Novitsky had difficulty performing her job
without the assistance of other employees. In August
2007, Novitsky received additional training on how to use
the PTS. In her performance review in November 2007,
Novitsky received a successful rating, with the caveat
that her work performance, including the accuracy of her
entries into the PTS, was expected to improve.
On February 6, 2008, the Agency issued a Notice of
Unacceptable Performance (“NUP”), informing Novitsky
that her performance had fallen to unacceptable levels in,
inter alia, Critical Elements #5, Application of Technical
3 NOVITSKY v. JUSTICE
Knowledge & Skills in Workplace Products or Services.
A4. The NUP stated that Novitsky had failed to demon-
strate an ability to accurately enter data into the PTS and
listed twelve errors she had made between November 9,
2007, and January 11, 2008. A4-6. The NUP also estab-
lished a Performance Improvement Plan (“PIP”), which
required that she make no more than three errors in
entering data into the PTS within the next 90 days. A6.
To aid Novitsky in bringing her performance up to ac-
ceptable levels, Novitsky attended weekly PIP meetings
with her supervisors. She was also offered the opportu-
nity for additional PTS training, as well as training in
time management and organizational skills, which she
declined.
On May 30, 2008, the Agency issued a memorandum
that informed Novitsky that her performance remained
unacceptable. The memo indicated that she had made a
total of fifteen errors in Critical Element #5 since receiv-
ing the NUP. Despite her continued unacceptable per-
formance, the Agency gave Novitsky an additional 60
days to show improvement. The PIP, as extended, re-
quired Novitsky to make no more than two errors during
the 60-day extension. A7.
Again Novitsky failed to meet the performance level
specified in the PIP, as extended. Accordingly, on Sep-
tember 24, 2008, the Agency issued a notice of Proposed
Removal. The Proposed Removal outlined sixteen errors
made by Novitsky, eight during the original PIP period
and eight during the extended PIP period. A7-10. The
agency alleges that some of Novitsky’s errors resulted in
an inmate being held for over 61 days without a judicial
hearing, having another inmate moved from one jail to
another for no reason, and having several inmates incor-
rectly listed as being released. Novitsky also allegedly
NOVITSKY v. JUSTICE 4
caused a $31,900 deficiency in funding for a local jail to
house prisoners. The Agency did not consider any of
these errors to be de minimis. On December 8, 2008, the
Agency issued a final decision removing Novitsky from
federal service, effective December 20, 2008.
Novitsky’s union filed a grievance on December 15,
2008. Arbitration hearings were held on March 24-25,
April 15-16, and May 20-21, 2009. The union argued,
inter alia, that the PIP’s requirement that Novitsky make
no more than one error per month was “an unrealistic
standard for someone performing data entry.” A62.
On October 6, 2010, the arbitrator affirmed the
USMS’s removal decision. The arbitrator concluded that
all the requirements for removal from federal service had
been established: (1) the Office of Personnel Management
(“OPM”) had approved the Agency’s performance ap-
praisal system, (2) the Agency had communicated its
performance standards to Novitsky, (3) the performance
standards were reasonable, (4) the Agency had informed
Novitsky that her performance was not acceptable, and
(5) Novitsky’s performance was unacceptable in at least
one critical element. A66-67.
Regarding the reasonableness of the Agency’s per-
formance standards, the arbitrator acknowledged that
“[a]ll Agency representatives and witnesses testified that
a one-error per month standard made no sense.” A72.
Nevertheless, the arbitrator concluded that this was due
to the union’s formulation of the standard as one error per
month when it was, in reality, three errors over three
months. Id. The arbitrator also determined that, al-
though the NUP, Proposed Removal, and certain testi-
mony suggested a mechanistic approach to counting
5 NOVITSKY v. JUSTICE
errors, the errors in fact had to be “sufficiently substan-
tial” to count toward the sanction of removal. Id.
Regarding Novitsky’s performance, the arbitrator re-
viewed each of the sixteen errors listed on the Proposed
Removal and determined that there was substantial
evidence of nine errors (three out of the eight errors for
the initial PIP period and six out of the eight errors for
the extended PIP period). A73-85. Accordingly, the
arbitrator concluded that Novitsky’s performance fell
below the requirements of the PIP, rendering her per-
formance unacceptable as to Critical Element #5. See
A67, 85.
Novitsky timely appealed to this court. We have ju-
risdiction pursuant to 5 U.S.C. § 7121(f) and 5 U.S.C.
§ 7703(b)(1).
DISCUSSION
This court applies the same standard to an arbitra-
tor’s decision as it does to a decision of the Merit System
Protection Board (“the Board”). Martin v. Dep’t of Veter-
ans Affairs, 412 F.3d 1258, 1263-64 (Fed. Cir. 2005). The
scope of judicial review of a decision of the Board is nar-
rowly defined and limited by statute. We must affirm the
Board’s decision unless we find it to be “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C. §
7703(c); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998).
Novitsky’s primary argument is that a one error per
month standard is unreasonable, and that the arbitrator’s
NOVITSKY v. JUSTICE 6
application of this standard was arbitrary and capricious.
If the nature of the error standard were based solely on
the quantity of errors, it might well be that the standard
would have been unreasonably strict. However, the
arbitrator here clearly construed the word “error” to mean
“sufficiently substantial” errors. J.A. 72. In finding that
Novitsky could be "removed from service for committing
three errors over 90 days," the arbitrator "assum[ed]
[that] the errors at issue were sufficiently substantial."
Id. The arbitrator did not err in interpreting the stan-
dard to require a finding that the error be substantial, nor
did he err in finding that many of Novitsky's errors were,
in fact, quite significant and resulted in the mishandling
of prisoners and a substantial financial loss to the agency.
With respect to each error, the arbitrator made a specific
determination that the error was substantial enough to
justify removal, finding that nine of the errors were
substantial and seven were not. The arbitrator did not
err in finding that there were sufficient grounds to dis-
charge the petitioner.
Novitsky also argues that the arbitrator failed to con-
sider that the Agency removed her based on a locally
developed, subjective performance standard that was not
approved by OPM. We disagree. Although under 5
U.S.C. § 4304 OPM must review each agency’s perform-
ance appraisal system, “such approval does not involve
OPM review of the performance elements and standards
established for each position.” Lovshin v. Dep’t of Navy,
767 F.2d 826, 833 n.6 (Fed. Cir. 1985). In this case, the
arbitrator determined that the Agency had shown OPM
approval of its performance appraisal system, A66; the
Agency was not required to show OPM approval of the
Agency’s specific PIP standards, Lovshin, 767 F.2d at 833
n.6.
7 NOVITSKY v. JUSTICE
Novitsky also argues that the arbitrator failed to con-
sider several facts, including that she was assigned addi-
tional duties during the PIP period and that her
performance review initially reflected satisfactory per-
formance. Regarding the former, the arbitrator did
consider Novitsky’s argument that she had been assigned
additional duties during the PIP, but concluded based on
the testimony of the Agency’s witnesses that any extra
work was, in essence, just the normal ebb and flow of the
workload of a criminal clerk. A72-73. We see no error in
that finding. Regarding Novitsky’s initial satisfactory
performance, the NUP states that the initial satisfactory
rating was given with the understanding that her per-
formance would improve. A4. When it did not, Novitsky
was put on a PIP.
We have considered Novitsky’s other arguments and
find them unpersuasive. Accordingly the decision of the
arbitrator upholding the Agency’s removal decision is
affirmed.
AFFIRMED
COSTS
No costs.