NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3429
JOHN STRADER,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
Barrie M. Shapiro, Minahan and Shapiro, P.C., of Lakewood, Colorado, for
petitioner.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Franklin E. White Jr., Assistant Director. Of counsel were Elizabeth Thomas, and Stephen
C. Tosini, Attorneys.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3429
JOHN STRADER,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
DECIDED: August 8, 2007
Before RADER and SCHALL, Circuit Judges, and FARNAN, District Judge. *
PER CURIAM.
DECISION
John Strader petitions for review of the final decision of the Merit Systems
Protection Board (“Board”), affirming the Department of Labor’s (“agency’s”) demotion
of Mr. Strader for unacceptable work performance. Strader v. Dep’t of Labor, No.
DE0432050421-I-1 (M.S.P.B. Aug. 15, 2006) (“Final Decision”). We affirm.
*
Honorable Joseph J. Farnan, Jr., District Judge, United States District
Court for the District of Delaware, sitting by designation.
DISCUSSION
I.
Mr. Strader is a workers’ compensation claims examiner for the agency in
Denver, Colorado. His job responsibilities include managing injured workers’ claims
with the dual goals of paying benefits promptly until the work-related condition is
resolved and facilitating the return to duty of workers after injury.
On July 21, 2004, Mr. Strader was officially notified that he had failed to meet two
of the four critical elements for his position’s performance standard. The notice placed
Mr. Strader on a 90-day performance improvement plan (“PIP”). The PIP outlined the
agency’s expectations for Mr. Strader, explained where he had been underperforming,
instructed him on how he could and should improve his performance, and explained the
assistance management would provide during the PIP period. Mr. Strader was
informed that he needed to maintain at least a “needs to improve” rating during the PIP
period and for one year after its completion or else he could be subject to removal or
demotion without an additional PIP period. During the PIP period, Mr. Strader
maintained a performance level of needs to improve or better, as exemplified by his
rating of “effective” in an October 28, 2004 performance appraisal.
On November 2, 2004, Mr. Strader was place under new performance standards.
Subsequently, Ms. Nigel Strozier, Mr. Strader’s supervisor, concluded that shortly after
his October performance review, Mr. Strader’s performance had deteriorated. In
reaching her conclusion, Ms. Strozier reviewed eighteen of Mr. Strader’s assigned
cases for the management subcomponent of Critical Element 2. She found that eight of
eighteen, or 44%, had progressed at an acceptable rate, while the needs to improve
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standard required an acceptable rate of 80%. For the decisions subcomponent, Ms.
Strozier’s review found only one of thirteen cases in compliance, or 8%. On April 5,
2005, Ms. Strozier proposed that Mr. Strader be removed for unacceptable performance
of Critical Element 2.
On June 10, 2005, Mr. Strader was notified of the agency’s decision to demote
him, and on June 26, 2005, Mr. Strader was demoted. He appealed to the Board.
II.
The administrative judge (“AJ”) to whom the case was assigned entered his
decision based on the written record because Mr. Strader withdrew his request for a
hearing. Strader v. Dep’t of Labor, No. DE0432050421-I-1, slip op. at 1-2 (M.S.P.B.
Mar. 3, 2006) (“Initial Decision”). The AJ found that the agency’s performance appraisal
plan had been approved by the Office of Personnel Management, that the performance
standards were not unreasonably vague, that the agency had demonstrated by
substantial evidence that Mr. Strader had not met the performance standards, and that
the case sampling for comparison with the performance standards was “objective and
systematic.” Id. at 6-10. Accordingly, the AJ affirmed the agency’s decision to demote
Mr. Strader. Id. at 11.
The Initial Decision became the final decision of the Board on August 15, 2006,
when the Board denied Mr. Strader’s petition for review. Final Decision, at 1-2. This
appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
2006-3429 3
III.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required law, rule, or regulation having been followed; or
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).
On appeal, Mr. Strader makes essentially two arguments. First, he contends that
he was improperly subjected to “subjective or imprecise” performance standards. In
that regard, he urges that his performance standard was changed because, after the
PIP period, Ms. Strozier began counting errors on a “one” basis instead of a “one-half”
basis, i.e., each error counted twice as much as it did during the PIP period. If this
same standard had been applied during the PIP period, Mr. Strader asserts, his
performance that the agency found acceptable during the PIP period would not have
been acceptable. Mr. Strader argues that an agency cannot find performance
acceptable and then later find that same performance unacceptable, when it is the focus
of an adverse action.
Second, Mr. Strader argues that substantial evidence does not support the
finding that, during the post-PIP period, he failed to meet the required performance
standards. Mr. Strader contends that Ms. Strozier’s sampling methodology was not
“objective and systematic.” Mr. Strader states that Ms. Strozier’s sampling was “a
combination of random sampling, sampling involving particular claims situations, and
sampling certain files or tasks where Ms. Strozier believed she would find acceptable
2006-3429 4
work.” Mr. Strader contends that Ms. Strozier only reviewed 1.97% of his work and that
this was not a sufficient sample upon which to conclude that his performance was
unsatisfactory. See Bowling v. Dep’t of Army, 47 M.S.P.R. 379, 384 (1991) (finding a
review of less than 7% of employee’s work insufficient to establish performance).
Further, Mr. Strader asserts that Ms. Strozier based part of her acceptability rate not “on
anything he did after the end of his PIP, but on tasks he did not do during his PIP.”
We reject Mr. Strader’s arguments. We agree with the Board that any error
relating to the “one” basis change was harmless. Initial Decision, at 8-9. Mr. Strader’s
performance was sufficiently below the required level that even if the basis had
remained the same, Mr. Strader’s performance was still unsatisfactory. As noted, for
the decisions subcomponent of Critical Element 2, Ms. Strozier found twelve of the
thirteen cases were deficient, which fell well below the 80% performance standard
regardless of whether the errors were counted on a one or one-half basis. Id. Because
Mr. Strader’s performance would have failed under the one-half basis, we need not
address whether the agency’s approach created a situation in which performance that it
previously had found acceptable subsequently was found unacceptable. See King v.
Gen. Servs. Admin, 26 M.S.P.R. 2, 4 (1984).
As for Ms. Strozier’s sampling method claim, we see no reason to disturb the
Board’s decision. Initial Decision, at 9. The Board found that the sample size was large
enough to evaluate the body of Mr. Strader’s post-PIP work. Id. This finding is not
arbitrary or capricious, as Ms. Strozier reviewed 13 out of 134 cases available for the
decisions subcomponent of Critical Element 2—almost 10%. Also, the Board explained
how some of the errors that were found may have originated during the PIP period but
2006-3429 5
were still properly counted as errors after the PIP period: “I agree . . . with the agency’s
cogent argument that, although some of the appellant’s errors were initially made during
the PIP, they were either perpetuated into the post-PIP period by [Mr. Strader’s]
continuing failure to take requisite action or constituted new errors altogether (e.g., each
45 days in which no required action is taken by a Claims Examiner counts as a new
error).” Id. at 9-10.
We have considered Mr. Strader’s other arguments and have found them to be
without merit.
For the forgoing reasons, the final decision of the Board is affirmed.
No costs.
2006-3429 6