UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OBAID BEG, DOCKET NUMBER
Appellant, DC-0432-13-3191-I-1
v.
DEPARTMENT OF HEALTH AND DATE: July 5, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Obaid Beg, Ellicott City, Maryland, pro se.
Rebecca Wulffen, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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 interpretation of statute or regulation
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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or the erroneous application of the law to the facts of the case; the 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 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, 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 appealed the agency’s decision to remove him effective
April 13, 2012, from the position of Chemist, GS-1320-13, based on unacceptable
performance. Initial Appeal File (IAF), Tab 1. Prior to his removal, the
appellant worked as a Chemist in the agency’s Office of the Director, Center for
Biological Evaluation and Research (CBER), Food & Drug Administration
(FDA). The appellant’s duties included performing DNA sequencing,
oligonucleotide services, DNA synthesis; gene quantitation; amino acid sequence
analysis, amino acid analysis, RNA synthesis; providing expert advice and
assistance pertaining to procedures and methods; and assisting the Facility for
Biotechnology Resources Director in performing a variety of other work. The
appellant’s first-line supervisor was Dr. N.N., Director of Programs, and
Dr. C.W., Associate Director for Research, Office of the Director, who served as
the appellant’s second-line supervisor.
¶3 On July 29, 2011, Dr. N.N. placed the appellant on a 60-day performance
improvement plan (PIP) due to his unacceptable performance under critical
element (CE) II.A Administrative Requirements, CE II.B.1 Technical
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Competence and Knowledge, and CE II.B.5 Customer Service. IAF, Tab 13
at 90. The PIP informed the appellant that his performance during the period of
his Performance Management Appraisal Plan (PMAP) was unacceptable under
these critical elements, and it provided specific examples of his unacceptable
performance under each CE. The PIP provided the appellant 60 days to improve
his performance. Id.
¶4 On January 11, 2012, Dr. N.N. notified the appellant that he had failed to
improve his performance to at least minimally successful under CE II.A
Administrative Requirements, II.B.1 Technical Competence and Knowledge, and
II.B.5 Customer Service and proposed his removal for unacceptable performance.
The appellant provided written responses to the proposal notice on January 25 and
February 24, 2012. IAF, Tab 11 at 19-181. The agency removed the appellant,
effective April 13, 2012, based on unacceptable performance. IAF, Tab 1.
¶5 On appeal, the administrative judge determined that, because the appellant
did not challenge whether the Office of Personnel Management (OPM) had
approved the agency’s performance system, and because there was no reason to
believe that OPM had not approved it, she would presume that OPM had
approved it. IAF, Tab 37, Initial Decision (ID) at 5. The administrative judge
found that the appellant’s performance standards were “relatively detailed,” the
CEs of his performance plan were broken into subelements by job element, the
performance standards permitted an accurate evaluation of his job performance
based on objective criteria, and the elements properly considered sufficient
objective and measurable factors. ID at 7. Thus, after finding that the agency
met its burden of proving by substantial evidence that these elements were
reasonable, realistic, attainable, clearly stated in writing, and permitted an
accurate evaluation of job performance based on objective criteria, the
administrative judge found that the agency established that the appellant’s
performance standards were valid. ID at 7. The administrative judge found
further that the appellant’s performance standards were communicated to him and
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that he was given a reasonable opportunity to improve his performance.
ID at 8-10. The administrative judge found that the agency established that,
during the PIP period, the appellant’s performance failed to reach at least
minimally successful in three CEs, i.e., II.A Administrative Requirements, II.B.1
Technical Competence and Knowledge, and II.B.5 Customer Service.
ID at 10-16. The administrative judge found, moreover, that the appellant failed
to establish his affirmative defenses of discrimination (race, national origin, and
sex) based on disparate treatment, ID at 16-20, and retaliation for prior equal
employment opportunity (EEO) activity, ID at 20-21. Accordingly, the
administrative judge affirmed the agency’s removal action.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant has raised numerous allegations that the PIP
process was flawed and that the administrative judge made errors in sustaining
the charge and affirming the removal action. Petition for Review (PFR) File,
Tab 1. We have considered the appellant’s arguments on review. However, we
discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. See 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 she 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).
¶7 Here, after thoroughly discussing the record evidence regarding
Administrative Requirements, Technical Competence and Knowledge, and
Customer Service, the three CEs in which the agency identified the appellant’s
performance as unacceptable, the administrative judge found that the appellant
failed to perform successfully in all three CEs. ID at 10-16. Specifically, the
administrative judge found that, based on the detailed documentation and the
consistent and thorough testimony of the appellant’s immediate supervisor, the
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agency proved all five specifications by substantial evidence, and, thus, the
administrative judge determined that the appellant performed unsuccessfully in
the three CEs and sustained the charge. ID at 12, 14-15.
¶8 The appellant asserts that the administrative judge erred in finding that he
did not challenge whether OPM had approved the agency’s performance system
or whether the agency’s plan was correct and honestly prepared. In
performance-based actions taken under 5 U.S.C. § 4303, the agency bears the
burden of showing by substantial evidence that it effected the action under an
OPM‑approved performance appraisal system. Griffin v. Department of the
Army, 23 M.S.P.R. 657, 663 (1984). If an employee alleges that there is reason to
believe that the agency’s performance appraisal system lacks OPM’s approval,
then the Board may require the agency to submit evidence of such approval.
Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 12 (1999).
¶9 Here, we have found no evidence in the record indicating that the appellant
ever challenged whether OPM had approved the agency’s performance system.
While the appellant may disagree with the PIP and the performance ratings he
received, such disagreement is not a specific challenge to whether OPM had
approved the agency’s performance system. Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶ 11 n.2 (2010) (explaining that the agency
has the burden of proving that OPM has approved its performance appraisal
system if the appellant specifically raises such a challenge). Thus, absent a
specific challenge, we find that the administrative judge properly presumed that
OPM approved the agency’s performance appraisal system. ID at 5.
¶10 The appellant appears to argue that the emails between the proposing
official (Dr. N.N.) and the deciding official (Dr. C.W.) were improper and
indicate that the agency had a “preemptive plan in place” to remove him.
PFR File, Tab 1 at 1, 14-16. Specifically, the appellant asserts that emails from
the proposing official to the deciding official concerning the PIP reflect that the
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agency already had decided to remove him prior to his completion of the PIP. Id.
We have reviewed these emails, and we disagree that they evince a “preemptive
plan” to remove the appellant. In any event, there is no statutory or regulatory
prohibition against ex parte communications between the proposing and deciding
officials or any other officials or persons during the implementation of the PIP
itself. Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). It
is true that the ultimate decision in a performance-based action must be made by
the deciding official, and not by some other individual. See Andersen v.
Department of State, 27 M.S.P.R. 344, 350-51 (1985) (finding that, in a
performance-based action, it is the deciding official’s independent judgement on
the merits that is required by statute, regulation, and judicial precedent), aff’d,
790 F.2d 91 (Fed. Cir. 1986) (Table). The administrative judge determined that
the deciding official (Dr. C.W.) credibly testified that the appellant’s PIP was
“very clear and detailed” and that feedback to the appellant from the proposing
official was “very clear and specific.” IAF, Tab 36, Hearing Compact Disc
(HCD); ID at 9. She credibly testified further that the PIP provided the appellant
a reasonable opportunity to improve and that it was her independent decision to
remove the appellant when he failed the PIP. Id. We agree with these findings.
Thus, we find no merit to the appellant’s assertion that there was a preemptive
plan in place to remove him, and he has shown no error by the agency in
this regard.
¶11 The appellant also argues that the administrative judge’s decision was based
on the agency’s evidence and documents, which he asserts contained erroneous
information. PFR File, Tab 1 at 5. He asserts that, because his responses
demonstrated the “untruthfulness” in the agency’s evidence, the administrative
judge erred by not referencing his hearing testimony or his responses to the
removal. Id. The administrative judge’s failure to mention all of the evidence of
record, however, does not mean that she did not consider it in reaching her
decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
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132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Here, while the
administrative judge did not specifically refer to the appellant’s testimony, it is
clear from the initial decision that the administrative judge reviewed the entire
record and considered the appellant’s testimony and responses to the removal
action. Thus, we have found no merit to the appellant’s assertion.
¶12 In addition, the appellant argues that he was not given a reasonable
opportunity to respond to the notice of proposed removal because he was not
given sufficient time to access relevant materials. PFR File, Tab 1 at 4, 6-11.
The appellant asserts that he requested the opportunity to provide both a written
and an oral reply, and he contends that he was denied the opportunity to provide
an oral response. Id.
¶13 We have reviewed the voluminous record and find that, while the appellant
asserted below that he requested the opportunity to make an oral response and
that the agency denied his request, there is no evidence in the record to support
either that he attempted to schedule an oral response or that the agency denied
such a request. IAF, Tabs 32 at 13, 34; PFR File, Tab 1 at 7-10. Further, the
record reflects that the appellant provided a lengthy written response. IAF,
Tab 11 at 85-181. In addition, because the appellant’s written response made the
agency aware that he had not been provided access to his emails after being
placed on administrative leave, the agency provided him 4 hours to access those
documents and the opportunity to submit a supplement to his written response,
which he did. Id. at 19-85.
¶14 Similarly, the appellant argues that the time allotted by the agency for him
to access his work emails to prepare his response to the removal notice was
inadequate. PFR File, Tab 1 at 6. He asserts that he was placed on administrative
leave on January 11, 2012, and was asked to leave the workplace within an hour.
Id. He contends that he requested 3-4 days to access relevant data on his
computer but that he was provided only a 4-hour window period to access his
emails on an agency computer. Id. While the appellant argues that he was
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harmed because he only had 4 hours to access his emails, he has failed to provide
any argument to show what specific emails he allegedly was prevented from
obtaining during the time allotted or show that his inability to access such emails
prevented him from adequately defending himself against the agency’s charge of
poor performance. Rather, he generally asserts that he was denied a fair
opportunity to respond because the allotted 4 hours was inadequate for him to
prepare a response to the notice of proposed removal. Id.
¶15 Moreover, the appellant has made no showing of how an oral response or
additional time to access his work emails would have caused the agency to reach
a conclusion different from the one it would have reached in the absence or cure
of the error. Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed;
an agency 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). Reversal of an action is
warranted only where procedural error, whether regulatory or statutory, likely had
a harmful effect upon the outcome of the case before the agency. Baracco v.
Department of Transportation, 15 M.S.P.R. 112, 123 (1983), aff’d, 735 F.2d 488
(Fed. Cir. 1984). Therefore, the appellant failed to establish this claim, to the
extent that he may have been raising it as an affirmative defense of harmful error.
¶16 To the extent the appellant argues that he proved his discrimination and
reprisal claims, we disagree. PFR File, Tab 1 at 5. After thoroughly reviewing
the record, we agree with the administrative judge that the appellant failed to
provide any evidence to support his claim that discrimination was a motivating
factor in his removal. Specifically, as correctly found by the administrative
judge, there is no direct or circumstantial evidence, such as suspicious timing,
ambiguous oral or written statements, behavior toward or comments directed at
other employees in the same protected group as the appellant, and other bits and
pieces from which an inference of discriminatory intent might be drawn, to
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support his claims of discrimination. In addition, as the administrative judge
properly determined, the appellant did not provide any comparator evidence.
Further, the administrative judge correctly found that there was no evidence in the
record to support the appellant’s claim of a hostile work environment.
ID at 16-20; Savage v. Department of the Army, 122 M.S.P.R. 612,
¶¶ 35-51 (2015).
¶17 Finally, we find that the appellant has failed to establish his claim of
retaliation for EEO activity. While it is clear that he had previously filed an EEO
claim, and it is likely the accused officials, his supervisors, were aware of his
EEO activity, and the removal could, under the circumstances, have been
retaliation, the administrative judge correctly found that there is no evidence,
whatsoever, that retaliation for EEO activity was in any manner related to, nor a
motivating factor in, his removal. ID at 20-21; Savage, 122 M.S.P.R. 612,
¶¶ 35-51. Thus, the appellant has not proven his affirmative defense by the
preponderance of the evidence standard. Accordingly, we conclude that the
appellant has provided no basis upon which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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
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If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.