Barnett v. Department of Veterans Affairs , 505 F. App'x 948 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEE OTIS BARNETT, III,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2012-3189
______________________
Appeal from the Merit Systems Protection Board in
No. DC0432120392-I-1.
______________________
Decided: February 12, 2013
______________________
LEE OTIS BARNETT, III, of Raleigh, North Carolina,
pro se.
A. BONDURANT ELEY, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 LEE BARNETT, III v. DVA
Before MOORE, MAYER, and WALLACH, Circuit Judges.
PER CURIAM.
Lee Otis Barnett III appeals a final decision of the
Merit Systems Protection Board (“board”) sustaining his
removal from his position with the Department of Veter-
ans Affairs (“VA”) for unacceptable performance. See
Barnett v. Dep’t of Veterans Affairs, No. DC-0432-12-0392-
I-1, 2012 MSPB LEXIS 4314 (July 17, 2012) (“Board
Decision”). We affirm.
I.
Barnett was employed by the VA as a GS-2005-06
supply technician. His responsibilities included maintain-
ing supply inventories, contacting vendors, confirming
deliveries, and providing effective customer service.
Barnett was informed that the four critical elements of
his position were: (1) customer service/team relations; (2)
requirements analysis/inventory management; (3) budget
management and contract compliance; and (4) socioeco-
nomic goals. In May 2011, Dawn Bauknight, Barnett’s
first-line supervisor, gave him a progress review report
which indicated that he needed improvement in both the
customer service/team relations and the requirements
analysis/inventory management critical elements.
In July 2011, the VA placed Barnett on a 90-day
performance improvement plan (“PIP”). In documenta-
tion issued in connection with the PIP, the VA provided
examples of Barnett’s performance deficiencies and identi-
fied a program designed to help him improve his perfor-
mance. This improvement program included additional
training as well as weekly meetings with Bauknight.
During the PIP, Barnett also met repeatedly with his
second-line supervisor, Deborah Murray, who discussed
specific performance issues with him and helped him to
devise strategies “so that he could understand how to
LEE BARNETT, III v. DVA 3
avoid making the same mistake[s] moving forward.” Id.
at *18.
By letter dated January 12, 2012, the VA informed
Barnett that it proposed to remove him for unsatisfactory
performance because he had failed to improve his perfor-
mance in the customer service/team relations critical
element. The letter stated that Barnett had failed to
place orders for supplies that had been requested by VA
personnel, failed to respond in a timely manner to emails
related to supplies, and had told Bauknight that certain
medical supplies were on back order when they were not,
in fact, on back order. Barnett was removed from his
position effective March 19, 2012.
Barnett appealed to the board, arguing that he had
been improperly removed and that the VA had failed to
accommodate his disabling medical condition. On May
30, 2012, an administrative judge held a hearing at which
seven witnesses testified. The judge subsequently issued
an initial decision sustaining Barnett’s removal and
concluding that the VA had established by substantial
evidence that Barnett’s performance had been deficient in
at least one critical element of his position. Id. at *6-7.
The judge rejected Barnett’s claims of disability discrimi-
nation, noting that he had “completely failed to prove that
he [was] disabled within the meaning of the [Americans
with Disabilities Act, 42 U.S.C. §§ 12101-12213].” Board
Decision, 2012 MSPB LEXIS 4314, at *51. Indeed, “based
on the medical evidence submitted” by Barnett, the ad-
ministrative judge was “unable to discern the nature of
his alleged disabling medical condition.” Id.Because Barnett elected not to appeal the adminis-
trative judge’s decision to the full board, that decision
became the final decision of the board on August 21, 2012.
Barnett then appealed to this court.
4 LEE BARNETT, III v. DVA
II.
Our review of a decision of the board is limited by
statute. We may set aside a board decision only if it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McEntee v. Merit Sys.
Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (citations
and internal quotation marks omitted).
An agency has authority to “reduce in grade or re-
move an employee for receiving a rating of ‘unacceptable’
with respect to even a single ‘critical element’” of his
position. Lovshin v. Dep’t of the Navy, 767 F.2d 826, 834
(Fed. Cir. 1985) (en banc) (emphasis omitted); see 5 U.S.C.
§ 4301(3). When reviewing performance-based actions,
this court must give “deference to the judgment by each
agency of the employee’s performance in light of the
agency’s assessment of its own personnel needs and
standards.” Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d
1558, 1564 (Fed. Cir. 1985) (citations and internal quota-
tion marks omitted).
As the board correctly concluded, the VA presented
persuasive evidence demonstrating that Barnett’s per-
formance was deficient in the customer service/team
relations critical element of his position. Notwithstanding
the fact that his supervisors provided him with guidance
and training during his 90-day PIP, Barnett’s perfor-
mance remained unacceptable in that critical element. At
the hearing before the administrative judge, the VA
introduced both testimony and documentary evidence
showing that Barnett failed to maintain an adequate
inventory of essential medical supplies, failed to respond
to emails related to supplies in a timely manner, and sent
LEE BARNETT, III v. DVA 5
an email stating that certain operating room supplies
were on back order when they were not actually on back
order. Bauknight testified that Barnett failed to maintain
proper records regarding the receipt of inventory supplies,
and that a scheduled surgery had to be cancelled because
Barnett had failed to maintain adequate inventory levels.
Board Decision, 2012 MSPB LEXIS 4314, at *29-30. In
light of this evidence, the administrative judge did not err
in sustaining the VA’s determination that Barnett’s
performance was deficient in a critical element of his
position. See Hall v. Dep’t of the Treasury, 264 F.3d 1050,
1060 (Fed. Cir. 2001) (“[T]he evaluation of and weight to
be given to . . . [the] evidence in the record are judgment
calls that rest primarily within the discretion of the
Board.”).
At his hearing before the administrative judge,
Barnett did not testify and did not otherwise refute the
VA’s evidence showing that his performance had been
unsatisfactory. He did, however, call several witnesses to
support his claim that the deficiencies in his performance
were due to an unmanageable workload. Barnett also
introduced an email from Jamal Brockington, the supply
technician who assumed Barnett’s duties after his remov-
al. Brockington stated that he could not “seem to get
ahead on all [the] orders,” and that it was “almost impos-
sible to keep up with everything.” Board Decision, 2012
MSPB LEXIS 4314, at *42. The administrative judge
acknowledged that such evidence indicated that Barnett’s
position was “challenging and demanding,” but noted that
the VA had also produced evidence showing “that [Bar-
nett’s] duties were not impossible or unattainable.” Id. at
*43. Both Bauknight and Murray testified “that they
were familiar with [Barnett’s] workload and duties and
they believed that the workload was, in fact, managea-
ble.” Id. The administrative judge found the testimony of
Bauknight and Murray to be credible, id., and we see no
basis for disturbing this credibility determination on
6 LEE BARNETT, III v. DVA
appeal. As an appellate court, we may not set aside an
administrative judge’s credibility determinations unless
we find them to be “inherently improbable or discredited
by undisputed fact.” Bieber v. Dep’t of the Army, 287 F.3d
1358, 1364 (Fed. Cir. 2002) (citations and internal quota-
tion marks omitted).
We have considered the additional arguments pre-
sented in Barnett’s informal appeal brief but do not find
them persuasive. Accordingly, we affirm the board’s
decision sustaining Barnett’s removal.
AFFIRMED